I ILLINOIS Production Note Digital Rare Book Collections Rare Book & Manuscript Library University of Illinois Library at Urbana-Champaign 2020 flPLE’S TELEPHONE BDMPANY ET AL - BRIEF FOR COMPLAINANTS 0N FINAL HEARING. E. N. DICKERSON, CHAUNCEY SMITH, J. J. S’J‘ORROVY, C. HOWSON, va‘ Counsel. , BOSTON: ALBRED MUDGE & SON, LAW PRINTERS, 24 FRANKLIN STREET, 1884. ' a?! . 1.1.9.!!! 3‘” L, 1:42.17: .3! CONTESTS. Summary of the case and of the evidence ............... . . . . . Statement of the case and of the subject-matter. . . Mr. Bell’s case THE DRAWBAUGH CASE : Origin and general statement The rules of law applicable The exhibit instruments and what they prove They will not talk The microphone THE HISTORY OF THE CLAIMANT DISPROVES THE CLAIM: Drawbaugh, a professional inventor, Whose work was well known. . 192 Events, publications and disclosures fatal to the claim His surroundings and occupations COMPLAINANTS’ PROOFS AND WITNESSES DRAWBAUGH’S ALLEGED POVERTY AND LACK OF RESOURCES. . . . . . . Tools . . Money DIIAII'BAUGII’S UNTRUTHFULI‘ESS AS A WITNESS DEEENDANTS' WITNESSES THE MAGNETO INSTRUMENTS D AND E DATE OF ME. BELL’s INVENTION. . . . Summary of the whole case and of the evidence The case and the parties Description of the record The patents sued on , their meaning and scope judicially defined.. . .192—238 239-288 . .289—313 . 314 318-342 342—362 . 362 ..368— 450 450—515 MR. BELL undeltook to invent a speaking telephone, did invent it, patented it, extensively published it, became famous for it, and was recognized as the originator of it Previous litigation under these patents Infringement not disputed . . . . ii CONTENTS. Subject—matter of the invention; nature of articulate speech; the vi- brations which constitute it; the manner in which the speaking telephone is actuated by them and reproduces them . . . MR. BELL’s CASE : M‘. Bell’s history; how he invented the speaking telephone and dis- closed it; his contemporaneous correspondence about it The point he had reached in the summer of 1875 and consequent prep- aration of his specification The specification and its meaning . . . It is to him that the community owe in fact the possession of the speaking telephone His liquid transmitter Hostile criticisms of Mr. Bell’s patent: The instruments of the patent will talk. . . . The patent is for a speaking telephone; this has been judicially established THE DRAVVBAUGH CASE : Newspaper proclamation for the claimant in 1880 The defendants enjoined Brief s‘atement of the Drawbaugh case Drawbaugh‘s general history No results followed from anything that he did He knew of Mi“. Bell’s invention, but for four years made no claim. The conduct of the claimant and of the originators of this enter- prise show that they knew that he had no valid claim He never put the alleged invention into any practical use whatever anywhere ; he never applied for a patent on it before the summer of 1880. . . The explanation offered ispoveriy merely. The defendants allege that he and all his friends realized that a telephone that would speak would be of enormous value ; quotations from the testimony about this The common talk, proved by the defendants’ witnesses, was that Drawbaugh tried to make a talking machine, ard did not succeed The pretence of poverty is insufficient and false A practically useful telephone must be proved to make a defence. . . Iflnd ofproof the law requires. It is not here offered. . . . CONTENTS. The inference drawn from the defendants’ failure to call witnesses who can prove the facts alleged if they we1e true The dcfen lants’ case rests solely on 01:11 lecollcctions; the weakness of the mommies and the dulness of their Witnesses ............ The claimant cannot state the origin of his own alleged invention. . The law of the case . . . What the defendants must prove and the kind of proof required, with quotations of authorities The claimant’s history and conduct more important than mere recol— lections , the former always control the decision 1n this class of cases; anthmities The defendants‘ proof must remove all doubts; authorities Value of various kinds of proof; authorities Failure to produce and call the more persuasive evidence and the more intimate witnesses raises very strong presumption against the story; authorities THE EXHIBIT INSTRUMENTS PRODUCED AND WHAT THEY PROVE: All the earlier sets before D and E have lost their principal operative parts ; the existence and character of those parts depend on the statement of the claimant alone ; he has described them, and if made as described, it is proved that none of them alleged before D and E could have talked . . . This fact destroys the credit of all the witnesses who have sworn that they heard good speech through them, and the principal part of the witnesses the defendants purport to rely on have so sworn, including Drawbangh Description of the exhibit instruments with dates alleged fo1 each. Their value as proof Their structure rests on Drawbaugh’s testimony alone without sup- Value which the courts give to “ lemains’ . The alleged eailier instiuments, F, B, C, I are plainly expe1imental instruments , thus their st1uctu1e indicates that they did not give results enough to warrant the time needed to make a well- finished pair. Thus the appearance of the instruments them- selves and the consequences alluged for them disprove the story of early success and constant subsequent exhibitional use The sequence of the instruments and what it proves as to dates It is apparent from the description sworn to by Drawbaugh that each better set superseded its predecessors . . . . . . . . v iv CONTENTS. The habitual exhibition of the earliest and worst set at and after the date of the Bell patent disproves the existence of any better ones at that time ; the defendants' record examined in this light, The instruments relied on wi Z not talk” .' The defendants offered what they allrged to be recent reproductions made by Drawbaugh of the alleged originals, and asserted that they would talk; we compelled them to repeat the tests in the presence of the parties. The only instruments they offered as Ireproductions did not conform to the descriptions and remains produced, but were much better; they were tried at these tests under conditions far more favorable than could have existed at Drawbaugh’s shop before the Bell patent; the result of these tests demonstrated that none of the instruments described be- fore D and E could have transmitted speech in the hands of his witnesses before the Bell patent Particular examination and comparison of the tumbler instrument F, with the alleged but falsely styled “ F reproduced,” and 0f the tin can B, with the alleged but falsely styled “ B reproduced ”. Difference between the conditions under which “F reproduced ” and “ B reproduced ” were tried, and the conditions under which it is alleged F and B were used 168, 173—4 It is not true that Drawbaugh ever had before the Bell patent such an instrument as “ F reproduced.” The remains produced and sworn to by all the witnesses could not have been used to make . an instrument which contains the features of “ F reproduced” as distinguished from those shown in the drawing and descrip- tion of F. The defendants’ witnesses, if they prove anything, prove the use of F until a time after the Bell patent, and this disproves the existence of the alleged better instrument in the form of “ F reproduced ” Drawbaudh himself fails even to assign a date for an alleged original of “ F reproduced” No 1eas0n is offered why every part of the alieged original “ F rep1o- duced” should have been lost, while so much 1emains of the alleged earlier and less perfect F have survived. The defend- ants, in failing to try the instruments in the form alleged for F, and by adding the important improvements found in “ F repro— duced,” and by making the test under greatly i111proved con— ditions, have confessed that they knew that F and B never could talk; Mr. Benjamin, the expert, admitted as much himself. . . . CONTENTS. Results obtained in the New York tests with “ F reproduce< ” and A prove that no witnesses at Drawbaugh’s shop ever heard an intelligible sentence through A, or through 0 and I. The re- sult of these tests not only proves that these instruments are unable to defeat the patent, but it proves that all the witnesses who have sworn to speech through them are unworthy of credit, including Drawbaugh The filter ophone .' The defendants have produced a number of microphones made by Drawbaugh. It is a part of their story, if their evidence is to be taken on its face, that by the summer of 1876, when Mr. Bell was first heard of, Drawbaugh had two pairs of perfectly fin- ished and highly organized microphones, as perfect as those which the efforts of all subsequent inventors brought into com— mercial use many years later. That he at that time should have. accomplished so much and made no progress since, cannot be believed. That he, reaching that point at that time, should have, on his way to it and since then, conducted himself as it is admitted he did, is an imp'>sslbility. The evidence explicitly disproves any such condition of facts as their story asserts. . . . 182 THE HISTORY OF THE CLAIMANT AND THE-TESTIMONY OF THOSE NE \REST TO HIM PROVE THAT HE DID NOT INVENT THE SPEAKING TELEPHONE 1 The allegation is that all that he did was freely made known and shown to everybody that came to his shop; the proof is that he had during the ten years under inquiry partners and workmen in the shop to the number of about forty; that no one of them ever attemp‘ed to talk through a telephone; no one of them ever say a complete apparatus connected up ready for use; only an insignificant number of them —-three or four—preteml that they ever saw any parts even, and the parts which they think they did See were only detached pieces of the worthless tin can B, and perhaps the worthless tumbler transmitter F . . 192 \Vnrrrnx Pnoor AND PUBLICITY; it is all in favor of the complainants. . 195 Before summer 0f1876 Drawbaugh has been all his life a professional inventor and patentee; and at one time advertised himself as a Solicitor of Patents . . .. He published in 1874, 1875 or 1876, a list of his inventions; it con- tains seventeen, but does not contain the speaking telephone ; the advertisement was produced —— the defendants offer no explana- tiouofit....,........... .. .. 198 vi CONTENTS. He exhibited some inventions at the State fairs in 1868 and 1869, but no telephone, though he asserts that he had then had them . . . 200 His nearest friend published a newspaper article about his work and several years one of his inventions on Nov. 16, 1875, but did not mention the telephone Events and publications of 1876. —He heard of Mr. Bell’s fame in the summer of 1876, but made no claim ; he was brought in contact particularly with Holsinger and Shapley, under such circum- stances that the claim would have been made if he had had any ground for it After this he showed the worthless tin-can instrument to Shaplcy, I. D. Landis, 0. A. Landis, H. S. Rupp and Jacob Grissinger as the best he had ; this disproves the existence of better instruments, He proposed to exhibit at the Centennial, and so stated to the news- papers, but what he proposed to exhibit was a clock which was still to be constructed, and not telephones, which he alleges he had had for many years . Events and publications of 1878. — He had now constructed three or four electric clocks from four to seven feet high each, and they were mentioned in the newspapers; he was also mentioned as a person who was trying then to make some improvements in the telephone, but never as the originator of it 204 . 206 . 207 He was visited by a number of newspaper writers with whom the tele- - phone was mentioned, but he stated expressly orimpliedly to all of them that he had never done anything which amounted to the invention of it One of these writers published this soon after in a newspaper The articles in question ; testimony of the writers Deposition of rib. dItli/AGLUS, one of the writers, editor of the Baltimore American . . . Drawbaugh’s cross-exrmination about it These articles are espe :ially important because they were published when great attention was directed to the telephone, and the writers could not have failel to state Drawbaugh’s clairnit’ he had made Similar statements to other witnesses- Theodore Grissinger, leeophi- lus ll'erwer Drawbaugh visited the telephone company’s office in Harrisburg, ex— amined their instruments, showed one of his own, borrowed a CONTENTS. commercial instrument and took it to his shop. Neither he nor his friend Stees, who accompanied him, pretended that he had invented the telephone, though the latter asserted that he was then trying to improve it His autobiography of the fall of 1878 enumerates his inventions, but refers to his telephone work in effect as that of an improver and not of an originator Events of 1879 : In the course of the Faucet Interference Case, in the summer of 1879, Drawhaugh and his brother and a shopmate were called upon to state what inventions of any importance Drawhaugh had ever originated and reduced 10 successful prac- tice; they named several, but did not include the telephone among them In 1878—9 Chellis, one of the principal defendants, inquired about Drawbaugh’s telephone work, and with the assistance of an old and intimate friend of Drawbaugh, who had been a constant free quenter of his shop. and knew his inventions, concluded that Drawbaugh could not antedate Bell, and Drawbaugh, in effect, signified his assent to this conclusion. . . . . . ., How Drawbaugh came to be produced as a prior inventor DETAILED EXAMINATION or DRAWBAUGH‘S HISTORY BEFORE 1877: The allegation is that he made the invention and constructed a tele— phone to transmit some speech in 1864—5 He never applied for a patent or put it into practical use before July, .1880; the explanation offered for this conduct is that during all this time he was in a state of abject poverty, and could not command the means to takeout a patent, nor the means and tools required to make any for use The facts about this: After making this invention he made several others, which he pat- ented; list of his patents He found men of Ineans and enterprise to furnish money and become partners in all of them His personal resources in money, tools and materials were ample . . HIS SURROUNDINGS AND RESOURCES. OCCUPANTS OF HIS SIIOP. Mril—platefcedw and his partners in that, 1865—72 ; Governor Geary was one of them I Vlii CONTENTS. He received upwards of $6,000 for this invention, and his partners raised about $20,000 more, to fit 11p a machine shop to make it under his direction This concern continued abaut six years, 1867—73 ; had nine partners and fifteen or eighteen workmen; no one of them, unless it be a member of Drawbaugh’s family, pretends that he ever talked or attempted to talk through a telephone or saw a complete ap- paratus ready for use ; only two pretend to have seen detached parts of the tin-can instrument B and a portion of one of the parts of F . . . . That company reorganized itself in 1869 as a corporation, taking Drawbaugh‘s name —- the “ Drawbaugh Manufactming Com- pany.” They elected him master mechanic and draughtsman; they advertised themselves as manufacturers of a number of his inventions; they urged him to provide them with more to occupy their capital and machinery. He offered several, but no men- tion was ever made between them of a telephone. This is proved by the testimony of one of the principal managers, by the production of the records and of the advertisements, and is not contradicted 111 any way whatever . . . . . .. . . . . . . . . . . He owned a sl1a1e of stock In this company worth at one time nea1ly $3000, and which, ev en afte1 the failure of the company, netted about $500 . A pledge or sale of this, or the money which he actually received upon the winding 11p of the company in 1873, would have enabled him to patent the telephone six times over, if he had one to patent Tue Mill Bush Company wo1ked under his direction; no member of it eve1 talked th1ough a telephone, 01 attempted to, bef01e the date of the Bell patent, 1868—9 . . . . . . . . Hauck Bros. & C’). 1873—4—5. They were men of means; paid $7,000 for his faucet inventions and machinery, and carried on the busi- ness at his shop; he told them of all his inventions; he never told them of any telephone; their testimony is positively not contradicted In 1879 a controversy arose in which Drawbaugh thought it material to show that he was an inventor of merit; David Hauck, W110 had constantly worked in the shop, and Drawbaugh himself ani his brother Henry were asked what he had ever invented that had worked satisfactorily; he named a number of contrivances, but not any telephone CONTENTS. Hauck remembers what it was that Drawbaugh did, and spent his time and experimented upon p Axle Company, 1875—6. This covers the most important period in the case, when he alleges that D and E and other practical instru« ments existed at the shop. No member of the Axle Company ever attempted to talk through any, or ever saw any rigged up ready to talk; the most that can be proved by them is that something was perhaps said about talking machines to some of them, and that at some time not well fixed, and which may have been after the date of the Bell patent, he showed to one of them the worthless tin-can instrument B . . . . . . Such a condition of proof is absolutely inconsistent with, and dis- proves the case alleged Summary of persons connected With the shop who would all have known of and used telephones if there had been any, but who did Other persons who would have used his speaking telephones if they had emisted; Prof. Heiycs A. H. [Refer and S. O. lVL'Zson, telegraph superintendents, to Whom he showed other electrical contrivances, but no telephone . . . . . WJ.Stees Theophz'lus lVetwer, patent solicitor and old friend of Drawbaugh’s. . Isaac Lloyd, teacher . The regular customers whom he named never saw telephones . . . . . . He attempts to improve the telegraph after, according to his story, he he had made a telephone which superseded it; magneto key. . . . Documentary evidence of importance exists, which the claimant has not produced .................................. . His scope and standing as an inventor classes him as an ingenious improver in small contrivances, but entirely incapable of reaching the speaking telephone CO1\II’LAINAI‘I’1'Sy WITNESSES, summary .' The weight of our proof is not to be measured merely by the number of witnesses called; it rests upon the conduct and history of the claimant; the abundant means and resources of himself and his friends; the fact that those Who would know most and best ahout the speaking telephone, if it existed at the shop, know nothing of it; and that the defendants are forced to rest their case upon the mere recollections of accidental visitors and loaf— :v-_<~W"W:;"V‘W‘ «wwvz—a-W 4/ CONTENTS. ers of low intelligence and bad memories, who say that they paid no attention to the matter they are called on to testify about. The claimants list of inuntions published both befme and afte1 the Bell patent, his repeated statements and disel osures. . . . Enumeration of witnesses who are repeatedly referred to in the record as persons whose position would enable them to have knowledge, who have been called about subordinate matters, as the dates when men worked for them, etc., but not interrogated about tele- phones . . Witnesses called by the complainants who would have known of the telephone if it had existed List and summary of these String telephones: proof from the defendants’ own record that there were string telephones at Eberly’s Mills before the date of the Bell patent THE ALLEGED POVERTY AND LACK OF RESOURCES ................... . The allegation of practical telephones and the fact that this profes- sional inventor and patentee did not go to the Office; that he never put them to any practical use; that, although he freely communicated the invention to everybody, no one desired it for practical use, and it made no mark, are facts conclusive against him unless otherwise accounted for. The defendants’ only at- tempt to do this is by the allegation that he was in abject poverty and totally destitute of proper tools and materials part of their allegation, however, that the poverty did not pre- vent him from spending a large part of ten years on this work and perfectly completing the invention by making finished in- struments (it for commercial use, but that it only prevented him from patenting them when completed; or duplicating a few for 290 . 316 The statement of such an explanation refutes it. He did, however, have abundant means and resources in the way of money, tools, machinery and wealthy neighbors ready to invest their money in inventions Tools and machinery: he was a skilful mechanic, and during all the time of inquiry had the free use of a well-equipped machine shop driven by water power, constructed and fitted 111) by his partners in the faucet. He advertised himself in print as a maker CONTENTS. of machinery, paying special attention to Patent Oflice models and electric machines The list obtained from him on cross—examination of the mauyeon— trivances he experimented upon and constructed between the time when he says he made this invention and the time of Mr. Bell’s patent proved that he had abundant leisure, means, ma- teiials, tools and machineiy . . . . Prominent among these was a number of lalge electric clocks four to six seet high, with carved walnut cases, handsomely finished brass works, all manufactured at his shop at his own expense . . Pretence that his time was devoted to telephones ; extravagance of the assertion, and its falsity Quotations of these assertions, found in defendants’ testimony . . . The witnesses all swear that substantially his Whole time was de- voted to this and nothing else ; such testimony, contrasted with the fact of the numerous and elaborate other contrivances he did make, shows that they are not to be relied upon He pretends that he had made most of the important inventions of our generation, though every one of them. apart from the telephone under investigation, had been made and published long before he touched them Drawbaugh’s finances and financial resources; list of receipts ; his abundant means ; his possessions His own testimony about his finances and his attempts to account for the disposal of this money is false; examination of the de- tails of it Supposititious old debts Miller’s death and the apple speculation His credit enabled him to borrow money as he wanted He invested his money in real estate Leonard-Kissinger note He disposed of duplicate pieces of furniture which he had no use for, and now pretends that he sold his household goods to buy food, Henry Bayler’s false testimony about finances; false, and known to be so to Draivbaugh when it was produced in his case Fettrow’s testimony about the rent proved by-his accounts to be untrue , ,. . . His conduct about other matters proves that he had resources in the way of credit which enabled him to get along without earning day wages CONTENTS. He declined gainful work during the time of the Haurks . . . . . . . . The band serenaded him, and some of them were asked to supper, He had many rich farmers near him who at different times between his alleged invention of the telephone and the date of the Bell patent raised and invested over $30,000 in his shop He never seriously applied to any one for assistance about the telephone; the proof about this Money found for other inventions in 1876 and 1878 Comments on Drawbaugh’s professed lack of memory and real lack of truthfulness No court can decide in favor of a claimant who will not swear to a case himself THE DEFENDANTS’ Pacers: Certain witnesses allege that they heard speech before the date of the Bell patent . . Other witnesses say they saw but did not take the trouble to hear; such evidence is hardly even cumulative if the principal wit— nesses fail to sustain themselves The defendants rest 011 mere recollections from which no act followed, A witness who says that he had a speaking telephone before they were known in the world, paid little attention to it, and never acted upon his knowledge, cannot be relied on Leading questions habitually resorted to by the defendants because they cannot get their witnesses to testify in any other way . . . . N0 witness for the defence is able to describe the structure of the al— leged instruments or the nature of their operation Drawbaugh’s deposition weak and unreliable The defendants’ witnesses do not profess real recollections, but only conjecture Instances of false associations in attempts to fix dates Many material dates shown to be essentially false ——instanees Four fifths of the witnesses profess to have heard good speech through instruments which the Court now knows will not talk They are a credulous set, disposed to believe anything of Drawbaug'h or which he tells, however absurd, and without examination. . . . His shop full of electric contrivances which they never understood, and between which their memory is unable to distinguish Instances specifically proved of confusion of instruments 357 370 371 371 371 . 372 373 373 377 CONTENTS. xiii Brief abstracts of the depositions of those who say they heard before 1867. 1869. Mr. Bell’s patent through all the instruments except D and E, —— Samuel Snell A. B. Shank George Freese J. Scherich Harmon K. Drawbaugh H. Geistwelt Abraham May E. B. Hoffman and Maglaughlin George W. Drawbaugh Ira D. Kahney R. K. Shireman John C. Smith Henry F. Drawbaugh David M. Ditlow W. Senseman Mrs. George Drawbaugh and Mrs. George Free. .. ........... 309 George Natcher W. H. Martin F. Keefauver Henry Bayler John B. Drawbaugh Michael P. Smyser E. R. Holsinger Dr. John \V. Moffitt Jere Kohler \V. H. Zealing Mr. Eicholtz and Mrs. Eicholtz .. . James Brooks General considerations about 1873 and previous years 1874. 1875. II. B. Musser W. H. Decker Thomas Draper ......................................... 4 Robert McCleaf Abraham Ditlow Urias R. Nichols CONTENTS. J. H. Reneker C. E. Uptlegrafl' 0. B. Kahney Eli Graybill Jacob Evans John Simmons 1876. H. L. Hamme David Cowens ..................... . ......... . Instruments not identified and string telephones Summary of witnesses who allege they heard before Bell’s patent Analysis of them . . . _THE MAGNETO INSTRUMENTS D AND E: » They are the first that are able to transmit speech enough to defeat a patent; talked through and listened at by many persons. . . . Failure to call a large number for the year 1875 would of itself prove that they were not made then The defendants’ evidence about them Date ................. . . . Identity .............................................. . ....... Proof from, the Drawbaugh family: Dalllvl Dra-wbaugh, the claimant, declares that he does not know in what year they were made; he cannot assert that they were made before the Bell patent H C. Sp1inuer, defendants’ witness, proves that they were not made hetore the Bell patent Drawhaugh confirms Springer’s proof Defendants’ proofs in favor of D and E; the testimony of the Drawbaugh family is inconsistent with then-existence before the Bell patent Henry F. Drawbaugh John B. Drawhaugh Gem-(re W. Dr Lwhauvrh 1V1 tncsses who say they heard timough D and 1. béfmc the B ll patent, -- Haiinon K. D1awbangh _ \V. H. Decker Jeremiah Fry Isaac B. Millard Daniel Fettrow E. R. llolsinger a“. ‘41-, .-.1.<__..Mmm..-uwh~nmxm CONTENTS. Witnesses called in snrrehuttal in the last and fourth years of‘ the case who say they heard through D and E, —— John Simmons George A. May This proof is so much less than D and E would have produced during their first year that it disproves their existence in 1875 Witnesses who say they saw D and E, but did not take the trouble to listen Daniel Rupp Daniel Shopp J acob B. Fry . C. E. Updegratf .................................... > ...... . Jacob Balsley Daniel B. Condry Jacob B. Shettel John H. Stevens D. M. Wisler George L. Hale ............................... Jacob R. Vanasdale ' D. Drawbangh ....................................... . . . . . 4 H. C. Springer W. S. Dellinger S. Nichols T. Draper E. Graybill XV. N. Miller Magnets of D and E not made in 1875 Disproof of D and E from the Axle Company Capt. Moore Summary of proof about D and E Date of Mr. Bell’s invention The Draper-Kissinger Ram Bridges & Flood. GENERAL INDEX TO BRIEF. A Autobiography of Drawbaugh Axle 00.. ..238, 259, 260, 450, 501 B Balslcy, J. ....318, 483, 490 Bates, W. H..... ..... .. 335,437 Bates, Samuel H.. . . . . . . . 293 Baseliore, Milton. . . ....433 Bayler, Henry .. ..156, 354, 401, 445, 497 Bear, Wilson . . . . . . . . . . 263, 50‘.) Benjamin, Park Blake, Dr. Clarence J ..... . ...... 35, 45 Bowman, Henry N.. .. . .. . .266. 510 Bowman, Cyrus. ..... . ....... Bowman, Mrs ............ . ......... 296 Bricker, Geo. S. . Brooks, James.. .. ....156, 248, 422, 446 G Carns, Jacob. . . . . Centennial, proposed exhibition by Drawbaugh at .. ............. . . 206 Chambers, \Villiam P . ..358 Chcllis, E. \V ...... . ....72, 78, 231, 337 Clocks, clcctric. . . . 7, 32.: 'Clock (10....- Condi'y, D. 13.... ....484, 490 Cowens, David .. .. . . . . . . . . . . . . 440, 497 Cross, Chas. R Crull, Lafayette . . . . . . . ,.. ..........244 D Darr, William........ ..305 Decker, W..H...201, 307, 424—5, 446, 4139 Dellingcr, W. S . . .. . ....336, 495 Ditlow, ....304 Dit10W,Alfred ..... ................308 Ditlow, Abraham .......... 297, 428, 447 Ditlow, David. . .. . .....3l0, 330 Ditlow, D. M. . . ......313, 397, 445 Ditlow, Joseph 297 Dietz, Emanuel.... ....291, 293 Draper, ’1‘ . . . . . . .. 155, 427, 446, 498 Draper-Kissinger Ram . . . . . . .. . . .. 23 Drawbaugh family" . . . . . . . . . . . .406, 456 Draw )augh, H. F. . . . . . . . . . . 155, 225—7, 332, 335, 395, 445, 466 , Drawbaugh, 11. K 337, 386, 444, 468 Draw )augh, J. B 404, 445, 467 Draw augh, G. W 375, 391, 444, 468 Drawbaug‘h, Mrs. Lydia- 3519 memugh, Mrs. Daniel ....... 294, 466 Drawbaugh's proposed exhibition attic Centennial.... . Drawoaugh’s business carcl..14, 196, 199 Drawbnugh, Hauek 1:. . . . . . . . . . .195, 224 Drawbaugh’s autobiography. . . .. 224a Draw allgh, publications about him ....... . ..... ........1E)6, 201,202 (See also Newspaper Articles.) Draw )uugh’s inventions 23 ,321—329, 340 Drawbuugh‘s patents . . . . .. .. .. . .. . 236 Draw mugh Pump Co. . . . . .‘237, 243, 24-}. Draw )augh Manufacturing Co.. . . . . 237, 240, 289 E Ebcrly, C.... 239 Eicholtz, Jesse. ...156, 176, 312, 421, 446 Eicholtz, Mrs ........... . ...... 421, 446 Electric clocks . . . . . .207, 3'26 Emminger, S. M. . ..... . . . . . . .. ~. . . 307 Ensmingcr, Jacob F. . . . . . . . .. . . 486, 490 Eppler, Herman .1.. . . . . . Evans, Jacob ...... 93, 298, 436, 447, 476 Evans, Mrs. Jacol)..... 93 F Faucet Company. See Drawbauqh Manufacturing Company. . ...237—240 Interference. ..195, 224 Molasses...... ......237, 240 D xviii Fettrow, D...293, 334, 356, 407, 447, 470 Fettrow,William.................. 293 Fisher,A...... ......... 373 Free, George 336 Free, Mrs. M .....399, 445 Free, Jackson..................282,436 Free, John 282 Freese, George................384, 444 Frownfelter, A.... ........292, 302 Frownt‘elter, W. 0..... 303 Fry, Jacob B..................480, 490 Fry, Jere..................291,447, 469 Fry, Jonathan....... 93, 440 G Gardner, AH 244 Geary, Governor. . . .. .. .. ...236—243 Glisbweit,H ..............388,444 Gilbert, Ezra F... ...292, 386 Gorgas, W.R... ...248, 292 Gorgas,W.L... ..........248,292 Graybill, Eli... . ..... ......434, 447, 498 Grissinger, Jacob H..... 206 Grissinger, Theodore . . . . . . . . . . . . . . 220 Grove, M. M. ..............264, 509 H Hamme, H.L..................438, 447 Hale, George L................486, 490 Harro,E.F....................... 297 Hart, D............ ............. 303 Hauck v. Drawbaugh. . . ..195, 224 Hauck, D. A.... . .....225, 257, 272, 358 Hauck, Sam'lF................225, 258 Hauck Bros. & Co 257, 289, 358 Hawn,Jacob...................... 333 Heck, JohnB..................... 293 Heck,William.................... 293 Heiges; Prof. Sam’l B. . 270 Henry, Prof. Joseph.. ..35, 47, 48 Herr, Henry........... 338 Hertzler, S. M. ...248, 292 Hill, Judge—Lysander .72, 73, 78 Hoffman, E. B......155, 254, 389, 445—6 Hosler,George.................... 291 Holsinger,E.R...................196, 334, 356, 409, 446,472 Hursh,JohnF.................248,308 J Jacobs, MW72, 73,78 Jefferies, Jos. C 339 GENERAL INDEX TO BRIEF. K Kahney, Augustus. . . . . .93, 267, 299, 511 Kahney,1ra D..... ....333, 392, 445 Kahney,N.W..................... 380 Kahney, Orlando B.. ..298, 353, 433, 447 Kahuey, John ............299, 511 Kaufi‘man,Benj.. . Keefauver, John F 401, 445 Keifer,A.R ..... 273, 295 Kissinger-Draper Ram. . . . . . . .. 525 Kissinger, Cyrus.... ....... 304 Kissinger, Geo. Frank. .... 304 Kissinger, J. M 304 Kissinger, G. W.......... 304 Kline, Jacob...................266,509 Kline W. N 248 Kohler, Jere...................418, 446 L Landis, I. D...............203, 205, 498 Landis, 0. A Lee, J. F Leonard, George..... ..........294, 351 Lloyd, Isaac...............207, 208, 280 M Magneto Key 282 Maish, L 431 Major, Davis............ 258 Martin, William H. ..400, 445 Matthews, James P..............211~5 May, G. A93, 447, 474 May, Abraham,.....-.... ......388,444 McDowell, Mrs. Emma.. .. .. ..... 224a Maglaughlin, W. J....155, 389, 419, 446 Maglaughlin, J. J..............155, 389 McLeaf, Robert................427, 447 Millard,I. B...............385, 444, 470 MillbushCo............ ...237, 256 Miller, Wilson N...............305, 498 Miller, George D.... ......305, 348—357 Miller, Henry..................308, 346 Miller, J. R......................., 305 Moffitt, Dr. J. W..72, 228, 337, 415, 446 Moore, J. A156, 259—262, 324, 359, 379, 501 Mumper, G. W 300 Musser, H. 13.... ...156, 424, 446, 497 Musser, H. R............207—8, 424, 446 GENERAL INDEX TO BRIEF. N Nail-plate Feeder . . . .. . . .. Natcher, W...... . .. Natcher, G Natcher, M. H.. .. .. Neidig, Jncob......... . ., Neidig, Henry ...... . .............. 302 Newspaper articles, including those by Rockafellow and others 196, 201—2, 207—9, 210, 217 Nichols, Edward-.." ....... 258 Nichols, Samuel 305, 384—5, 444, 497 Nichols, U. R. . .236, 239 305, 376, 429, 447, 497 O 0rris,C ..... .. P Pump Co. See Drawbaugh Pump Co. R Ram, the Kissinger-Draper Reneker, J. H. .. . ..352, 354, 431, 447 Rowe,Geo................ . 303 Rupp, Daniel. . . . 478, 490 ...... .. . . ..205, 248, 301, 499 . . . . ..... . ........ . . . . . 301 .... ...... .. 302 Sacller, W .............. . ...... . . . Scherich,J................155, 384, 444 Schrader, John C . . . . ' Scott,Jas.D ....................224a Senseman,VV..................398,445 Shank, A. B. . .. ................ 382, 444 Shapley, R. E.............203, 361, 498 Sheely, Frederic.......... 310 Sheely,John...................... 245 xix Shettel, J. E i .....333, 357, 380, 485, 490 Shopp, J. S ........... . ........ 479, 490 Shireman, R. K 393, 445, 4'8, 490 Simmons, John ........ .93, 437, 447, 474 .......248, 318, 333, 394, 445 Smyser, M. P..... ..407, 446 Snell, Samuel ......... . ........ 381, 444 Spengler, Mrs. Blanche B ..... . .. . . 400 Springer, H. 0.156, 186, 332—3, 460-3, 494 Sprenkel, John A Stees, William J . . . . . . . Stephens, J. H.. .. .. 333, 485, 490 Stevenson, David. . . . .. .. . . . . . .246, 269 Sutton, R. B ...... .......... 155 T Taylor, J K.. .. .. . . .. .348 Telegraph line, Stees‘ s private .221, 279 Thompson, Sir William. . . . . .35, 66 U .155, 432, 447, 483, 490 V Vanasdale, Jacob R . . . . . . W Weaver, Theophilus...220, 280, 295, 510 Weber, J Wilson, S C. Wisler, J. M ...... . ...... . ..... 486, 490 Wolf, John..... ........156, 339, 511 Worley,F.U.... ...............207-8 . . .221, 279 Updegrafi', C. E. . ......486, 490 Zacharias, J. J... . ........383, 444 Zearing, W'. H Zimmerman, P. 0.. . . . . . . Zimmerman, James C. . . ...-nun. BELL v. DRAVVBAUGH. SUMMARY. There are no questions more important than those which concern the spirit in which the Court approaches this issue and the kind and amount of proof required to make out a defence. But these ques- tions have been settled by the highest authority. Controversies of this kind are not new: the courts have learned their dangers, and have long ago laid down the rules which a hundred years ofjudicial experience have shown to be the only safe guides. The law raises a presumption in favor of a person who has ob- tained a patent for a new invention, and been the first to offer it for use, that he is the original and first inventor. This legal presump- tion is based upon, or at least is in harmony with the known laws of human conduct. But its strength will differ greatly with differ— ent inventions. If an invention is of small or doubtful value; if a practical trial of it involves a large expenditure of money; if it will he wanted by but few people, if wanted at all ; if it will not minister to a general want; if it will not, from its nature, excite the interest or curiosity of those to whose attention it is brought, it is easy to see that a failure to apply for a patent or to employ the invention for some useful purpose can be accounted for without‘ doing violence to known laws of human conduct. But if, on the contrar , the invention is one calculated to eXcite general interest and curiosity, to appeal to the imaginations of men, to their love of the marvellous and wonderful; if it can be easily and cheaply tried and exhibited, and used by the unskilled; if its results can be easily demonstrated and understood ; if it will minister to the wants or gratify the desires of a multitude of people; if it can be seen to be valuable, and especially if the inventor believes it to be valuable, then the failure to apply for a patent, and, more than that, the failure to make earnest and honest efforts to enlist the interest and 2 BELL o. DRAWBAUGH. efforts of others in the invention, is so at variance with what the world expects, and has a right to expect, that it will outweigh any amount of testimony which rests upon the memory of witnesses. But these equitable and just grounds for raising a presumption in favor of a patentee, and for requiring the most satisfactory evidence as to any alleged prior inventor that through him the inVentiou had become known or used by others within the meaning of the law, are greatly enhanced when, in addition to a compliance with the condi— tions antecedent to the grant of a patent, the patentee and those associated with or claiming under him have gone on and done that which the law assumes will be done, though it does not in terms re- quire it, afte ‘ and in consequence of the grant of the patent, have promptly and diligently brought the invention into general use. Patents which have such a history are entitled to the most favorable consideration from the courts and have always received it. To Alexander Graham Bell is this country and the world indebted for its first knowledge of the speaking telephone. He first offered it; he first laid claim to it; he first pursued the course which one would naturally if not inevitably pursue if he believed that he had a right to claim the invention as his own. To him and to those who have rec ignized his work and acted upon the belief that the patents granted to him were valid is this country indebted for the early and wide introduction into use of the speaking telephone. If this coun— try is to reward the man from whom it actually received this great invention, that reward is due to Mr. Bell, from whom it received the full consideration for the grant of the patent. From him airl from those who have acted upon the legal presumption that his patent is valid, the public has received all that it can receive from any inventor, -—the knowledge of the invention, and the application to it of the capital, labor and business experience necessary to give the public the enjoyment of it. These are the considerations on his side, and justice and equity would require that no evidence of prior knowledge or use should defeat the right of an inventor to his patent short of that which should show that the public had in some other way become possessed of that which he was nound to give as the consideration for his grant. If a patent once granted is defeated by any evidence short of this, SUMMARY. 3 then the public obtains, without consideration, and under promise of reward, that knowledge which enables it to practise the invention, which is all that it ever can obtain from any inventor, and which no other inventor, even if he be in fact 11 prior inventor, can ever be the first to connnunicate. At the very threshold of our inquiries we are met by this astound- ing fact that, if Drawbaugh did invent the telephone, the public received nothitig from his hands. This the answer in terms admits. Whatever else may be claimed for him, it never can be claimed that the actual history of the telephone in the world is his history. If, looking at the invention now so widely known and used and so recently utterly unknown, we attempt to t'ace back its history to its origin, that history does not lead up to Drawbaugh. These are considerations which the highest authorities have adverted to and have acted upon. The answer in this case alleges, among other things (p. 7), "That long prior to the alleged inventions by said Alexander Graham Be 1], and long prior to the respective inventions 0t said Gray and said Edisonfs aid Daniel Drawba11gl1,tl1en and now 1esidi11g at said Eh- erly’s Mills, const1ucted and operated practical working electric speaking telephones at said Eberly’ s Mills, and exhibited their suc- cessful operation to a great number of other persons resident in his vicinity and elsenhereb' , that the said electric speaking telephones, so constructed and successfully and practically used by him, as afore— said, contained all the material and substantial parts and inventions patented in the said patents No. 174,465 and No. 186,787, granted to said Bell; and also contained other important and valuable inven- tions in electric and magneto telephony, and were fully capable of transmitting, and were actually used for transmitting articulate Vocal sounds and speech between distant points by means of electric cur- rents , that some 01 the oiiginz 1l machines and instruments invented, made, used and exhibited to many others, long prior to the said alleged inventions of said Bell, or either of them, are 91771111 1193151— 611126 11nd capable of successful pun/zeal use, and ate identified by a laige number ot p ersons who personally tested and used and knew of t/zeit'p1'11ctical ope/“(111011 11ml use 1711/16 years 1570, 1:871, 1872, 1673, 1874, and both subsequently and prior the 1eto , that certainly more than fitt. , and probably not less than one 11 studied poisons 01' exit 11 more, were cooni; ant of said Dr: itvbangh s invention and use of said telephones, and or his claim to be the original and first inventor thereof, prior to the alleged invention ot'said Bell, or either of them; that saitl Drawbaugh, for more than ten years prior to the year 1880, was miserably poor, — in debt, with a large and helpless family de— 4 BELL v. DRAWBAUGII. pendent upon his daily labor for support, and was, from such cause alone. utterly unable to patent his said invention, or caveat it, or manufacture and introduce it upon the market." It" the tacts thus alleged were true, they could certainly be proved by evidence of the most conclusive diameter; and a speaking tele- phone would lead to at least so much notoriety. The courts expect- such a state of facts to exist and require such proof of it to be furnished. ‘ ' But the answer says that all the instruments ever put into use in the world before 1880 (outside of Drawbaugh’s expeiimental use of eight or ten instruments in his own shop), " Were not the specific machines and instruments invented by said Drawhaugh as aforesaid, but were machines and instruments invented by others, subsequently to the original and first invention of the elec- tric speaking telephone by said Drawhaugh, and subsequently to the invention of his said improvements thereon, as aforesaid; and that as this defendant is informed and believes, such machines and instru- ments were so put on sale and into public use, notfrom or by reason 'ofanj/ information derived from or through said Drawbaugli, but by an independent invention 07- independent inventions thereof byvotliers.” Rules of decision. —- The question to be here dealt with is not a new one. The courts approach these cases in the spirit indicated. See especially the three cases quoted on p. 102, infra. They ask one question: “ Did you, not theoretically or imperfectly, but prac— tically, do the thing with such success that you actually otfered something which it was worth while for the community to lay hold of for immediate use?” (Pp. 97, 102, et seq., infra.) The courts have laid it down as an inflexible rule of decision, that: no patent for an invention which appeals strongly to the curiosity, the interest and desire of the community, can he overthrown by mere recollections. From the time of \Vhitney’s cotton gin, through the contest about the sewing machine, down to Brady’s case, decided by the Supreme Court within the last year, the authorities have been unit'orm that the probative eti‘ect of conduct will " outWeigh a host of witnesses,” and that such a patent attacked at a late day will not be overturned upon any other proof. Where the prize is great, alleged recollections are treacherous and cannot generally be directly contradicted when untrue. SUMMARY. 5 If the evidence does not affirmatively prove such facts as the inven- tion would give rise to, according to the ordinary laws which govern human conduct; if tho:e whose position or intelligence afford the best opportunities for reliable knowledge do not affirmatively prove the case, the Court considers the record, though it might be per- suasive in itself, and containing matters not explainable, to be a , record in disproof; and it considers the failure to produce the better proof as an admission that if produced it would be adverse. Lord Mansfield says :— " It is a maxim that the evidence is to be weighed according to the proof which it was in the power of the one side to have pro- duced and in the power of the other to have contradicted.” The Supreme Court has repeatedly applied these rules with vigor; it expects this Court to follow them; men rest their interests upon them; cases are prepared in view of them; and if this enormous record of three hundred and sixty—six depOsitions for the defence fails to come up to them, it is not because the defendants have not. known of their importance or made the attempt. See the authorities, pp. 88—133, infra. The most prominent allegations known to be false. The instru- ments. — No witness pretends that there was ever any use except to transmit from one room to another in Drawbaugh’s shop, for pur- poses of experiment or to gratify curiosity, and by instruments tem- porarily connected to wires afresh each time they were used. No complete apparatus alleged to have been made before the close of 1674 exists in such a condition as to be capable of transmitting a sound. The most persuasive allegations of the answer thus turn out to be false. Alleged reproductions recently made by the claim- ant have shown by a test which the plaintiff compelled the defend- ants to make in the presence of witnesses that the alleged originals were absolutely incapable of the results sworn to in the ansWer and by four fifths of the witnesses, including] Di'ctwbaltg/z, or such as would defeat this patent. A later pair, alleged as of 1875, will talk, but these facts dispose of so much of the case and of the witnesses. “ The stubborn fact that Hunt's machine would not work, and that Howe’s would, made the oaths of the witnesses as inoperative as the machine.” SPuAGUE, J., in Ely v. Mons-on Mfg. 00., 4 Fish. 79 (1860). *‘m ’1? ”new.” BELL 1). DRAWBAUGII. “Poverty.”—-The defendants recognized so fully that Drawbaugh’s failure to apply for a patent or to put the invention into use during the alleged dozen years disproves the whole story, that they set up in their answer extreme poverty as the explanation. This alone they said prevented him from making an application for a patent. They attempted to prove this, but failed absolutely. Indeed their state- ment of‘it disproves it; for what they had to and did allege was time and means to complete the invention by instruments fit for commercial use, but not sufficient to enable him to take them to the Patent Office nor offer them for use (p. 319, infra). Not 0122]]th he did not do but what he did do disproves the claim. —But even if the poverty had been proved, it would not have helped, for not only that which he failed to do but What he actually did do is utterly inconsistent with the claim that he was in posses- sion of the speaking telephone. He was surrounded by and asso- ciated with men to whom he could have communicated the inven- tion, notwithstanding any poverty; men to whom he would have been all the more certain to have communicated it because he was poor; men to Whom he did disclose other inventions, and who aided him to patent them and apply them. Yet he wholly neglected to make them acquainted with a telephone. If he had it he must even have studiously concealed it; for if, as the anSWer claims, the invention was open to the world, they must have known of it. Drawhaugh’s story and surroundings.—The history asserted is that he described the telephone by sketch to one witness (Lory) in the winter of 1864—5, and told him that he was then constructing the apparatus; that he transmitted something in 1865 (J. A. Smith) ; that others heard speech through it in the first half of 1867 (Snell) ; that with unskilled men — country farmers — at the transmitter or at the rect ivcr, complete sentences and advertisements or the like read to it Were transmitted and correctly understood in 1868-43 (pp. 136, 160, tin/iv); that he continued to improve the instru— ments, had than fit to patent in 18th or 1870 at the latest, and still improved tl.em. That when he first heard of Mr. Bell, in the sum— mer of 1876, he had several sets lit for commercial use,~—l), 14;, L, M, G O, 11,—— including four or five microphones, with all the inventions and refinements of detail which are new found in the host SUMMARY. 7 commercial instruments as the results of several years of invention by hundreds of inventors (p. 182, infra). That he alone should have accomplished this is incredible. That having done so much and exhibited all he had done, his instruments were neither patented nor put to use, is impossible, no matter what the other circumstances of his life might be. But he was a professional inventor and patentee, though always of small mechanical Contrivances; he had such recognition by others that he made his living by his inventive skill; during these years his resources of means, money, tools, machine shop and personal skill as a workman were far beyond those of most mechanics; he had a large circle of friends, including several influential men ; during the years in question he made and found means to patent and manufac- ture other inventions, for one of which he received upwards of $6,000; during this time his neighbors were ready to invest and did invest many thousand dollars in his inventions; they sought more to put their money into, but to them he never offered a telephone. These facts are of the weightiest character. Occasions arose which called upon him to produce or to name by word of mouth and in writing the most important inventions he had ; these occasions disclosed other inventions, but no telephone. And when the telephone was mentioned in 1878 and 1879, it led to the statement by him and by at least one of his friends that he had per- haps improved the mother invention, but had not originated it. In 1874—5 he printed and published a list of his more important inven— tions, and in 1879, under circumstances of peculiar significance, swore to another, but they contained no telephone. These are some of the- positive facts in disproof; yet it is a part of their story that during all this time his chief thought was the tel- ephone; that he believed it to be his greatest invention; that he knew that a great fortune was in it; that he eagerly embraced every opportunity to make it known; more than thirty of their witnesses have sw0rn to this appreciation of it (pp. 80—4, infra). To compel belief in this story the defendants ofi'er recollections of results and recollections of dates; there is no paper proofwhalever. Drawbaugh’s knowledge and scope as an 2'1went0r.——'I‘he claimant’s character has a strong bearing on the case. Before Mr. Bell ever 8 BELL e. DRAWBAUGH. had tried to make an electric speaking telephone, Reis and others had spent twenty years in the endeavor. They had by electricity trans- mitted the pitch of sound, but not speech. Their instruments were constructed on a false theory. Either they did not know of, or, knowing, did not know how to transmit those peculiarities of sound vibrations which distinguish speech from a mere musical note. The knowledge of them was as essential as the materials out of which the instruments were to be constructed. In O’Reilly 1;. Morse, 15 How. 111, the Supreme Court said : — ”No invention can possibly be made, consisting of a combination of different elements of power, without a thorough knowledge of the properties of each of them and the mode in which they operate on each other. . . . For no man ever made such an invention without having first obtained this information, unless it was discovered by some fortunate accident.” Drawhangh never had this knowledge. The defendants thought it would enhance his merits to make it appear by his deposition that he had no means of acquiring it, and his answers upon that line of in- quiry showed that his knowledge of sound vibrations was exactly of those features which concerned the pitch of musical notes, but do not lead to speech (p. 286, infra). Proof that he experimented in the attempt to transmit speech would merely place him in the category of Rois and his followers; there is no evidence whatever that he ever disclosed or ever had a correct conception of the only mode of operation by which electricity can transmit speech. His witnesses are all (with one or two excep— tious, whose depositions strengthen our case) ignorant countrymen. His case must rest on their bare recollection that [he did in fact transmit speech, and when he did it, or on such proof as can be got from the exhibits and remains produced. DRAIVBAUGH’S HISTORY FROM THE TIME WHEN IT IS ALLEGED THAT HE MADE THIS INVENTION. Mal Mac/zine 00.— In 1864 he invented animprovement in nail machines. He found partners, one of whom was no less a person than Gov. Geary of Pennsylvania. They joined him at the outset, paid for his time and materials in experimenting, and for two patentS, SUMMARY . 9 Dec. 12, 1865, and Nov. 19, 1867. '1‘his enterprise continued until about 1873. The machine was built, tried at the nail factory,l)ut never went into use (p. 239, infra). T/ze Faucet 00. —Drawbaugh Manafltcéuring 00. —In the beginning of 1866 he invented an improvement in rotary molasses faucets, whleh he sold in 1867 to a company of his friends and neighbors for upwards of $5,000 in money (paid in instalments during the next two years) and $1,000 in stock. They then raised about$15,000 to $20,000 more, with which they fitted up a machine shop in his village. This concern lasted until July, 1873. In 1869 the business had become unprofitable, but his associates had not lost faith in him and asked him for some other invention to manufacture; he offered a number, but no telephone. They had a formal meet- ing at his shop to witness the exhibition of a gas regulator, which broke down in the attempt, but he did not exhibit any talking machine (pp. 243, 250, at 869., infra). In 1870 the concern was turned into a regular corporation, named itself the "Drawbauglz Manufacturing Company,” formally elected him ”master mechanic and dranghtsxnan,” and advertised themselves as makers of half adozen articles, all of his invention (p. 252, infra). This organization, between 1867 and 1873, had nine or ten part— ners, and, in all, as many as fifteen workmen, —-say twenty five people. No one of these talked or attempted to talk or was asked to talk through any telephone. No one of them ever saw a tele- phone connected for use. The most that is pretended is that two men connected with the company for a short time, and one of them a witness otherwise thoroughly discredited, were once or twice shown by him privately a tin-can instrument; and they say that he told them that he was going to make a talking machine out of it; and two or three ot the workmen, neighl’iors, allege that at some undefined or ill-defined time afler they left the shop they listened at a tin can, B. (see pp. 245—256. infra.) From the time this shop was fitted up in 1867 to the day of this suit, he has had a private room and work bench there, and the use of the water power and all the machinery, rentfree (p. 319, infra). Hauck Bros. d?) Oo.—In July, 1873, this firm bought out the Faucet Company, and thereafter for two or three years carried on the 10 BELL v. BRAWBAUGH. business at his shop. They were men of means, for they put $7,000 in cash into this invention. David Hanck, who was particularly con- cerned in the manufacturing Work, and had known Drawbaugh for five years, was a mechanic of rather remarkable intelligence, and for most of one year and at intervals dining another worked in the shop alongside of him. D ‘awbaugh admits that he was very free in com- municating to Hauek the various inventions he had made. Yet no member of this firm, ilo'any workmen employed there, if we except one of Drawbaugh’s own family, ever heard of a telephone during the whole time. They so testify, and Drawbaugh himself has in the most striking manner so proved (p. 257, infra). The Axle 00. next selected his shop as the place, and him as master mechanic, to construct the special tools to make their axles with and to manufacture their axles. This company was formed in the beginning of 1875 and finally separated Nov. 18, 1876; They cover, therefore, the year before Mr. Bell’s patent and the time when Mr. Bell became famous; if Drawbangh ever did anything which can amount to a defence, he had done it then. They never talked nor attempted to talk through the telephone; the most that they can state is some vague idea that to one or two of them Draw- bangh once mentioned that he was trying to make a telephone and to one of them he showed the tin can B. And yet the story of the defence is, that while that company was in existence, there then existed in his shop instruments that have hardly been surpassed by those in commercial use to-day. (See pp. 260, 502, infra). His business associates and workmen disprove the story. ——Thus the thirty-live partners and workmen who were around him during the eight years before the Bell patent disprove his story. Not all these thirty—five have been called; but so many have been brought before the Court knowing nothing, that their testimony, with Drawbaugh's deposition and the presumptions of law from the lailure of the defence to call the others, establishes the fact. Among them five partners of the Faucet Company have been called. TWU for the complainants are pesitive that they heard of nothing of the kintl before 1:57 7. Three others, including the treasurer and the superintendent, called by the defendants for some collateral matters, were not even asked about telephones. (See p. 248, infra.) SUMMARY. 1 1 Carns, called by us, worked three years for the Faucet Company and boarded six months in Drawbaugh’s house. He never saw nor heard of a telephone (p. 249, infra). There were other persons who would have known of telephones if he had any. One was Mr. Andrew R. Ifei'fer (p. 273, infla) , superintendent of telegraphs for the Pennsylvania Railroad, a partner of the electrical manufacturing firm of Hahl, Keifer & Co., who made nice electrical apparatus, and furnished most of what was used by the Signal Ser- vice at Washington. Another was Mr. Simon Cameron Wilson, now mayor of Harrisburg, and then superintendent of telegraphs for the Northern Central Railroad at Harrisburg (p. 275, infra) . Drawbaugh knew these two gentlemen, not [infrequently went to see them, talked about electricity and experiments he was performing, carried to Harrisburg to show them some of his electrical contrivances, obtained from them electrical coils, magnets and the like, but never, during all these years, said a word to them about telephones. Mr. T/Leop/w'lus Weaver, of Harrisburg (pp. 260, 280, infra), is a patent solicitor, an inventor, and to a small extent an exploiter of patents. He had known Drawbaugh since 1867, and Drawbaugh was in the habit of meeting him and talking with him about inven- tions, and had Weaver look up the state ofthe art for him upon sun- dry subjects. ‘Veaver had been the solicitor for the Axle Company, and in 1875 had carried on an interference for them in which he had used Drawbaugh to some extent as an expert witness. hiarch 1, 1876, lVeaver thought of buying them out, and spent at least two days at the shop, m-lking a detailed inventory of all their machinery and property. He was precisely the sympathetic man to whom Drawbaugh could not have helped mentioning the telephone if he had any, and to whom Drawbaugh would have gone to patent it. He never heard that Drawbaugh had a telephone until the summer of 1878. Being engaged at that time in preparing some applications for Drawbaugh on his electric clock, the subject of telephones, then making a great noise in the world, was mentioned. Drawbaugh said that he was then trying to improve them, and made a sketch of what he was trying to do, which \Veaver produces. He also said 12 BELL 11. DRAWBAUGII. that he hid experimented some with the telephone at an early day, but had (rot no results, and had dropped it. The testimony of these three men called by the complainants is positive; it is not contradicted, nor attempted to be contridicted, nor could it be, for the (Joint knoWs that if a speaking telt phone had been shown 01 mentioned to them it would instantly have at— tained publicity, been put to use, and found its way to the Patent Office. D/awbaugh’s means and resources. —During the time between his alleged invention and the Bell patent—say ten ol eleven ye 11’s —~D1'awhau<_rh actually to k out four patents; he had a machine shop stocked to manufactuie his war'es , he actually received 111 cash of his own money upwards of $10, 000, the lartrer part new money from his patents and his w wes, the 1est proceeds of sales of plop- erty he had bought (1). 343, infr a). He owned a house he lived in and a house he let. He bought himselt a parlor organ. The de- fendants swear that he was in “ utter want of the proper tools, 1112 1te1ials and methanieal appliances,” but he had the use of a well- equipped machine shop rent free, and between the summer of 1874 and the fall of 1876 he had printed the iollowing(p.200,1'71f7'a):—— mm 9.211% flflflW/‘Bflflé’fl, PRACTICAL MACHINIST. Small Machinery. Patent Ofi’ice .M'odels, Electric .Machines 4'0. a speciaéty. He exhibited at the State fairs in 1868 and 1869, but not tele- phones One of his partnels in one invention was Gov. Geary. In the faucet he had a set of active men w01th $20, 000 to $90, 000 each, who took his name for their colpOiation, made him master mech1 mic and asked him for 71101'6'1'11'0611/1'0118 to nutmtfitctm'e. They and his other neighbors put $30,000 into his shop upon the faith of his little inventions, which were nothing as compared with the telephone, and when one concern died another was ready to employ him. The his- tory of invention does not show an inventor better provided with resources of money, tools and materials, personal skill as a Work— man, or surrounded by those who were more ready to invest large SUMMARY. 13 sums of money on the faith of his unperfected and untried inven— tions; and yet the defence depends upon making the Court believe that out of his $10,000 and the $30,000 ‘aised by neighbors, to spend under his direction, in his own shop, $75 could not he found for his speaking telephone (pp. 314—358, ii’zfra). He found time and means for other things.—Drawbaugh testified that he never left work on the telephone for a moment except for some gainful occupation, and then With reluctance; he brought more than twenty-four compurgators to join in that assertion (p. 329, infra). One who had invented the telephone would so act, but he did not. Besides the things already mentioned, he devoted more time and material and money to unp"ofitable experiments than could have paid for patenting one telephone or making a hundred for sale. He made three galvanometers; an alphabet telegraph; an autograph telegraph; a magneto key for telegraphing; a second one; alarm bells for a hotel to be used by it; automatic fire alarm; electric belt; a new-fashioned pump; a syphou pump; a solar transit; a gear-cut- ting eugiue; an electric clock driven by an eight-day clock; four large electric clocks driven by earth. batteries; these had finished and polished b‘ass works, glass fronts, and some of them glasa dials, carved walnut cases, one of them seven feet high, and then others from four to six feet. These he built out of his own resources. For the brass work he made patterns and had special castings run at the brass foundry. But he has the assurance — and the lack of all sense of humor— to swear that he constructed these clocks, and a gear—cutting engine to make them with, and a solar transit to regu- late them by (as if he could perform so difficult an operation), and then got up a company to patent them, all in order to raise money with which to patent the telephone (p. 328, infra). [11's magneto key. —It is sworn that he believed that the talking machine would supersede the telegraph. In 1874, seven years after the alleged invention, he made a magneto key for telegraphiug; carried it to the telegraph office and had it tried; it did not work Well; he devised and constructed another; exhibited it in a shop in Harrisburg; took his friends Lloyd, the school teacher, and Keifer and Wilson, the electricians, to see it. But he never mentioned a 14 BELL v. DRAWBAUGH. telephone to those men nor took one outside his shop until long after telephones got into commercial use. Then he did. The Drawbaugh Manufacturing Company Wanted his inventions to manufacture. He furnished half a dozen; offered and they consid- ered some others, hnt no telephone was mentioned. In July, 1673, $425 unexpectedly came to him. He knew, so they say, that $75 for a patent on the telephone would make his for- tune. He used $300 to pay off the last mortgage on his double house; it was on it when he bought the property, six years before. Was " poverty ” the reason for all these things? Could he have done them if he had a speaking telephone? Contemporaneous print. — At some time between June, 1874, and the fall of 1876, he printed an advertising card. , [flam‘d @mwbauth ‘ lMVENZ/Vfiig agelemee _‘ A SfifiXW’EfidfislfltflmflSl WAlso Models Neatly Made To Order. Elbemly’s {Times Cumberland County, Pennsylvania-J [509me Side] Snell an advertiser would at least have tried to prepare a specifi- cation or a caveat 011 a speaking telephone if he had one; This card describes him as an “ inventor,” and on the other side of it it gives a list of the inventions on which he chooses to rest his claim to that title. It is called a list of " patents ”; countrymen and some of the witnesses in this case use that phrase as synonymous for “invention.” It was not a list of contrivauees actually patented; half the things enumerated in it were not, and that half includes those which are in the largest type on the card — the clock anal the SUMMA RY. 1 5 magneto-electric machine. lt was not a list of inventions which he owned, because he had sold all his patents. It was not a list of contri- vauces which he manufactured; because, with the exception of his carpet-rag looper and ram, he was not then engaged in the manufac- ture of a single one of them. It was simply a list of things which he particularly prided himself on, prompted partly by vanity and partly by a desire to have the public estimate the scope of his ability. If’ It can be F? and qtnckantt firm. g face of mum Itine and Driver for running Millstone. Mnnyin use ()0 oopER.-Alitfl'a l staff for levelin isf'actiontUSEl NG Na 51 6.4L mJVIo BflTTER r. . mend. BRLEG'E’RIG GLQGE. EEE etwbal wish XNVIUWOR _ ms: EQLMWIMG Eflflmm Elcctrin Clocks. foam of Electric movenmut. AG Iievtce by wlnchra s in without Needle or 9-] q Q Q E3 mg emiro sat ,. CARRETR AEHETU FLEGTBI PUMPS, ROTARAYIK OTHERS. nG Hydraulic .Ram. THE DRANVBAUGII Rotary Measure- For 'short line Telefiaplting. Fire Alarm. W301? SIMPLIGITY ithas ND RIVA-i ing Faucet. very cxtcnslvly used. 0 applied to any Stave; Heading Sc Shingle Gutters and Propcll Barrel Machinery. Nail Machinery for Feeding Nail Plates. GTAVE JOINTlNB MACHINE Tram & Red- No telephone there. That is one of those things against which any oath to recollections destroys the witness, but alters not the henrer’s firm conviction. The more oaths the more broken characters. After we put that card in evidence the defendants called two hun- dred and thirty—eight witnesses. None of them "referred to the card, nor did Drawhaugh go on the stand to tell why he left Hamlet out of his play. (See p. 199, infra.) In the fall of 1875 his witness Holsinger, who, according to his testimony, knew more about Drawbaugh’s inventions anl had more sympathetic interest in them than any one, wrote some articles for the county paper— notes from Eberly’s Mills. Holsinger has himself been a newspaper publisher and is at the present time. One of these articles was chiefly devoted to Drawbaugh and his works, but all that it can find to mention about him was the manufacture of axles then carried on at his shop, and his electric clock. The article 16 BELL v. DRMVBAUGH. of Nov. 16, 1875, which fills nearly a whole octavo page, contains the following (p. 201, infra) :— " ELECTRIC CLOCK VVITIIOUT A BATTERY is being gotten up in our town by Daniel Drawbaugh, to be exhibited at the Centennial next Fourth. It will be one of the things not dreamt of by every one, and will be a great credit to the nation tor its wonderful simple workings and great convenience.” Holsinger says that all the time he knew Drawbaugh the latter worked “ steadily, intently, never lost a moment,” and that the Wit- ness never knew of his working on any inventions except telephones and a magneto machine. But these printed lcttersl They have an ugly way of disposing of the witnesses as well as of the case. The inventor of the telephone possessing the only instruments in tlleiworld which could talk by electricity, on which he had spent his days and nights for eight years, and which had never been sewn out— side his shop, proposed to exhibit. not these wonders which he had, but an old type of eloek which he had yet to complete (p. 206, infra) l EVENTS OF 1876. Holsinger. — In the summer of 1876 Mr. Bell be mine famous by his exhibition at the Centennial. Drawbaugh heard of this. Of course his friend Holsinger, the newspaper writer, heard of it. The defendants’ story is that Drawbaugh then had in his shop five or six sets of practical operative speaking telephones which embodied nearly all the inventions which the labors and the genius of a hundred inventors have since developed. Drawbaugh afterwards went to the Centennial, expecting he says to see Bell’s telephone but did not. He could have taken a pair of his own which according to the oath of two of his “credible witnesses ” (Eicholtz) had talked down the noise of the machine shop. If he had the pretty little maenetos D and E he Would have. taken them and done far more than Mr. Bell had. He did not. He did not even mention the subject to his neighbor, George Leonard (def'endants’ witness), who went wiih him. Within ten days after his Visit, his bosom friend, Holsinger, wrote a nch letter to the county paper which had been publishing about Mr. Bell. There were the interests of his fiend, pride in his little village, and a newspaper writer’s eagerness for a Sen~ati0nal article; but all that he had then to Communicate, though SUMMARY. 1 7 that very paper had been writing about Mr. Bell, was about the cows and hogs in Eberly’s Mills (p. 203, infra). Mr. S/mpley, 1876. ——In 1876 Mr. R. E. Shapley, jeweller and watchmaker, of Mechanics-burg, an old acquaintance of Drawbaugh, had $2,000 idle; Drawbaugh solicited it for the clock; they agreed, and Drawbaugh carried his clock to Shapley’s store, set it up, and they signed a paper dated Nov. 8, 1876. But to this friend of means and a favorable dispOsition he offered no telephone. In Oc- tober, 1876, after Drawbaugh had heard of Bell, Shapley and his brother-in—law, Landis, Went to Drawbaugh’s shop to see the clock. The del'endants’ story is that Drawbaugh’s room was lined with telephones; that he then had substantially all, certainly the best of the instruments now produced, including the four small microphones and the Blake transmitter H. They went into that room and re- mained there an hour. He showed them the tin can will; the mem- brane 0n and no other instrument, and told them it was a telephone. Shapley and Landis so testify, and Drawbaugh does not undertake to contradict them (pp. 203—5, infm). One cannot help being struck with the resemblance between this instrument and the description of Bell’s instruments in the Scienlyt'c American of Sept. 9, 1876 (defts, exhibits, p. 140). In March, 1876, Dr. Van der \Veyde had published in the Scientific American an account of the Reis telephone, stating that though Reis intended to have it talk, it never could. Shortly after the exhibition of this tin-can instrument Mr. Shapley handed this Scientific American to Drawbaugh, pointed out this article and said to him " that was something of the nature of the machine he was working at then.” Drawbaugh took the paper away with him. This remark is testified to by Drawbang/L; he had kept the paper and he produced it for us. He neither exclaimed nor brought his little magnetos D and E to show the next time he came to Shapley, who had seen the tin can as the best thing. He said nothing and showed nothing (p. 205, infra). Capt. Moore, 1876. —-Capt. Moore was the manager and moneyed man of the Axle Company, Drawbangh was the chief mechanic, and the business was carried on in the upper story of Drawbaugh’s shop, where it is alleged Drawbaugh kept all his telephones and did all his 18 BELL c. DR AWBAUGH. telephone work. They began in February, 1875, a year before Mr. Bell’s patent, and finally dissolved Nov. 18, 1876, eight months after it. During this time Drawbaugh, so the story goes, made and showed to all comers substantially all his finished instruments, in- cluding the microphones and the Blake transmitter,—-During this tilne the news of Mr. Bell would have prompted him to say and show his best. The defendants called Capt. Moore and proved that Draw- baugh spoke to him of the telephone, showed him the worthless tin can B in Working order, and nothing else, never asked him to talk through it, and Capt. Moore told him that there would be a fortune in it if it could be put to practical use. The others of the Axle Co. know even less. In whatever part of the time this was, it dis— proves their story and is fatal to their case (pp. 260, 498, infra). Statements and publications of 1878. — During the first tour months of 1878 several newspaper writers, attracted by hearing of Drawbaugh’s electric clock, visited his shop. Their articles have been put in evidence and most of the writeis called by us. All wrote of the clock. To some of them he mentioned the telephone inciden- tally, and showed some instruments, but to none of them did he inti— mate that he ever claimed to be the first inventor, though the news- papers were then full of Bell and Edison. Two of these writers in their articles Inention telephones in connection with his name. The writer for the JIec/zanz'csbm‘g paper said that Drawbaugh “ ls invent- ing a telephone” “ which will produce the sounds louder and plainer than the mother invention.” After this Drawbaugh visited the editor. This newspaper had printed and continued to print articles ascribiug the telephone to Mr. Bell and the microphone to some Englishman, yet the Court is expected to believe that the writer had, at his neigh— bor’s shop, talked through telephones and microphones made before Bell v: s 11 lard of (p. 209, infra). His clock was mentioned in the Baltimore American by a local correspomlent in February, 1878; and thereupon Mr. James P. fllcttt/Lews, formerly a lawyer and then an editor of that paper, trav- elled a hundred miles to Drawbaugh’s shop in search of materials for an article. In November, 1878, he wrote and published a long one; it and the following is all that it contains about telephones : —— SUMMARY. 1 9 " It may be mentioned that Mr. D 'awbaugh constructed a rude tele- phone long before Edison loomed up as the ’boss’ inventor. He never expected to send articulate sounds over a magnetized wire, but he believed that an alphabet could be ar 'anged after the manner of the musical scale, and that messages could be transmitted and under- stood by the variations of tone and pitch. This unlcttered country mechanic came very near anticipating Edison and Bell in the inven- tion of the telephone. Nothing but his poverty prevented him from conducting his experiments to a successful issue.” A copy of this was sent to Drawbaugh (defts, ii, 1075, X-ans. 1517), but he never complained of it. This is the only paper or writing in. the world, before (his contro- versy arose, which ever hinted that Drawbaugh thought of the subject of the telephone before it was known in the commzmityfl‘om the inven- tion of others. It is his own statement in his own behalf, after Mr. Bell’s tele— phone had been in successful use and under every temptation to boast. Reis could have said as much truthfully. But no man who . believed himself the inventor could have said anything which could have conveyed such an idea. Mr. Matthews’s deposition is even more satisfactory than the article (p. 211, infra). Theodore Grissinger, a dealer in agricultural implements, himself somewhat of an inventor and patentec, invested some money upon Drawbaugh’s electric clock in the spring of 1878. He jokingly said to Draivbaugh about the time of Mattths’s visit, that he had better have invented the telephone than the clock, because it would be more profitable; whereupon Drawbaugh told him he had experi- mented a little in that way. Mr. Grissingcr was struck by this, and it occurred to him that if Drawbangh had done anything, it Would be worth taking up and pushing. So he inquired ; but the answers which he got to his inquiries were, that. Drawbaugh had attended somewhat to the subject, but had obtained no results, and had nothing of an early date to show for his work (p. 220, infra). Theophitas Weaver, his old friend, was drawing an application on the electric Clock in May, in 1878. The telephone was spoken of. Drawb-mgh said he was then trying to make an improvement on it to make the sounds louder, and made a sketch which Weaver has produced; it shows no improvement of value. He then added that «w A’aa‘fiwmv-O - 2’0 BELL v. DRAWBAUGH. he had experimented at an early (lay. This excited VVeaver’s inter- est, because he says he would have taken up the matter if Draw- baugh had done anything; but upon Further inquiry Drawbaugh told him that he had never got any results, had dropped the matter, and had no standing to be considered the inventor (p. 220, infra). After Grissinger and \Veaver testified. the defendants called two hundred and thirty-eight witnesses, but Drawbaugh did not go on the stand, and he has never contradicted them. The telephone in 1878.——Mr. Stees of Harrisburg was an old friend of Drawhaugh. He had from 1870a private telegraph line, and in the beginning of 1878 was the first person in Harrisburg to put telephones to it. After this, for the first time, Drawbaugh took a pair of his own to try: why not earlier? Stees said to the telephone people that Drawbaugh was then getting up a telephone which would beat theirs. He took Draw- baugh to the telephone office about May, 1878; Drawbaugh showed A (alleged to be the first finished instrument made, and superseded in 1875 by D and E) ; he tried the Phelps snufiP-hox which A much resembles in form; opened it; asked whether it was patented, and, being told that it was, remarked that his was too much like it; after- wards borrowed a commercial telephone, took it to his shop and kept it there a fortnight. All this time no hint from him or Stees that he had invented the telephone ten years before and for two years had had instruments which far surpassed the best in commercial use (p. 22, infra). The next occurrence shows that bashf'ulness did not trouble him. Drawbcmg/z’s autobiography, 1878—9.—In the summer of 1878 a county history was published and Drawbaugh agreed to snbscri be ten dollars for it, if they would publish his biography, which he furnished. It styles him “ an inventive genius of whom the country may well be proud.” It undertakes to justify the phrase by an enumeration. It concludes with the statement that he is an inventor of the "justly celebrated electric clock and of several kinds of tele- phones." It would be difficult to find language which more clearly expressed his position, not as the inventor of the telephone, nor the first inventor of any telephone, an assertion which would have done SUMMARY. 2 1 more to add glory to him and t0 the county than everything else contained in the four corners of the book, but an assertion that he, like many other people, improving on the " mother invention " had made several didereut kinds (p. 223, infra) . Before this biography was written or bargained for, the editor’s Writer had in Drawbaugh’s own shop, with Drawbaugh’s assistance, prepared a notice of the village, more than half of which was devoted to a description of Drawbaugh’s shop and the work carried on there, but it did not mention telephones (p. 223, infra). The faucet cleposilions.—In 1879 an interference contest arose between David Hauck and Drawbaugh about molas The just conclusions from these facts are that true reproductions (even trusting to Drawbaugh for the important missing parts which are not-controlled by the remains or the depositions) could not talk. The defendants’ course is a con- fession that they know this (p. 176, infra). Consequences. — These tests put out of the case everything before the two little magnetos D and E, alleged to have been made in 1875. But they do more than this. They agree with the proof from his history. They bring to the personal knowledge of the Court that the story told for him and told by him and nine tenths of his wit— nesses is untrue. \Vhen this is established, the Court deals very shortly with the attempt to pick a few things out of the heap of rottenuess. Moreover F, the broken tumbler, alleged to have been the only variable—resistance transmitter he had for nine years, and B, C and I, alleged magnetos, are such rude contrivances as to show that they merely served for experiments which never gave respectable results ; for if they had, or if he had wanted to use them many times, so neat a workman as Drawbaugh would have made better ones instantly (pp. 111, 133, 177, infra). BELL ’U . DRAWBAUGI'K. D AND E ARE THE ONLY INSTRUMENTS ALLEGED BEFORE MR. BELL’S PATENT WHICH ARE. GOOD ENOUGH TO ANTICIPATE IT; THE CASE TURNS ENTIRELY ON THEIR DATES. In such a contest as this, where the conside 'ations already referred to apply, it has been the established law, ever since O’Rcilly c. Morse, that the burden is on the assailant to prove a completed in— vention before the patentee made an adequate disclosure. Under the authorities Mr. Bell’s date of invention stands as of October, 1874. It is still more clearly established as of midsummer, 1875 (p. 512, z'nfm). Drawlmugh must stand on the date of a finished practical instrument. There can be no pretence of any such dili- gence as would enable him to connect his later work with the earlier under the statute. Now the defendants explicity allege that D and E were made in January, 1875. Evidence to support the dates of D and E. —— To prove the need- ful date of these two instruments, the defendants have not a single piece of paper nor any thing, except the bare recollections of a few men who, with one or two doubtful exceptions, have been neighbors and frequenters of that shop since that period and substantially down to the time of testifyinor, and who are but an insignificant traction of a record, the whole of which is tainted with falsities. Out of three hundred and sixty-six witnesses called by the defence, there are but eight who pretend to have ever used or attempted to use these two instrmnents, D and E, before the date of the Bell patent (p. 473, infra). That of itself is suflicient. For when- ever made, they were the first real fruits of his labors; they were the first instruments made by him that really talked, and if they were produced before telephones were known elsewhere, they must have had a great effect on him and those surrounding him; and the defendants know that the case turns 011 them. Out of these eight witnesses three certainly are worse than worth— less. Deeker swears to the use of the instruments a year before the time when the defendants allege and attempt to prove they were made. G. A. May is proved by his own cross-examination to have made his use of them at least six months after the Bell patent, in- SUMMARY. 27 stead of the year before. Simmons proved himself an unqualified. liar. The other five, like substantially all those that say they saw instruments D and E, have nothing but the merest and weakest recol- leetions to fix a date by. Such proof uncontradieted “ould be too weak to overthrow this patent. The specific proof against these two instruments is of three kinds. (1-) It is obvious, and Drau'baugh’s express te~timony is that his early alleged tin can and broken tumbler apparatus were super— seded by his next set, and the tin can especially thrown into the garret, shortly after his first set of better instruments was made, the mem- brane eaten off by mice and never replaced. Now, the proof is abun— dant in this case, both in the complainants" record and the defend— ants’ rccord, that as late as 1876, and after the Bell patent, the tin- can instrument B, in working order, with its bladder on, was shown and used as the best that Drawbaugh had. That is a positive fact, which disproves, and, one may say, physically displaces the good magneto instruments D and E. (2.) No inventor who had D and E a year before Mr. Bell was heard of would ever doubt that he had succeszully solved. the prob- lem of speech long before Mr. Bell, and was the prior inventor. Yet Drawbaugh in 1876, 1878 and in 1879 explicitly and expressly stated that he had never got results enough to antedztte Mr. Bell. He did not put it upon a question of dates, but upon failure of results. (3.) Drawbiiugh himself was unwilling to tell the Court that he had made these instruments before the date of the Bell patent. His testimony about them was 80 given and under such circzmistances as to he a confession that they were not. The Axle Company occupied the shop during that year and part of the next, and. as has been seen, their evidence is inconsistent with the existence of any operative instrument; while Drawbaugh’s talk with Capt. Moore, the most intelligent of the firm, and the exhibic tien to him of the worthless tin can 15 with [he 71’L6112f/7'CL228 on, but no other instrument, coupled with a request to advance money, proves that no better existed. I]. 0. Springer, rlg‘emlants’ Milness, says that in April, 1876, when Mr. Bell’s patent was a month old, he moved to Eberly’s Mills, and for the first time went to Drawbaugh’s shop; that from then 28 BELL v. DRAWBAUGII. until the end of the year he and Drawbaugh experimented almost nightly with the telephone; that during the first part of the time they had nothing but the broken tumbler and tin can (F and B) to experiment with for several months, and that after that D and E were produced as novelties. \Vhen Drawbaugh gave his deposition after these two witnesses had testified, his attention was called to Springer’s deposition by his own counsel, and that statement of Springer he was not able to deny. Nor is that all. The ease is to turn on establishing that D and E were made in 1875 and not in 1876 or later. Drmvbaugh, appealed to by questions such as even a band of infringing speculators never before addressed to their alleged inventor and vital witness, will not assert it. His language is (defts, ii, 827) :— " Q. 265. Mr. IIarmon K. Drmvbangh, a witness heretofore ex- amined for defendants, has testified on p. 579 of defendants’ printed record, that these instruments, D and E, were made in January or February, 1875, before the Axle Company received its new ma- chinery in March, 1875: have you any recollection of the fact or not? " [Oh/Fried to by 1117'. Slorrow as leading and incompetent] "A. I/zatre no recollection oft/16 time, but I recollect of him working on the machine; one of then) was made before that time; what I mean is, there was one of them made, and Ilarmon made, or helped to make the other; it has been quite a long time ago, [can’t remember [/16 year or date of it.” 1875 or later, is to turn this case; the alleged inventor says that he cannot tell in what year it was. Again (defts, ii, 661) :—- " Q 401. Please indicate all the electric speaking telephones that you have inwnted or made prior to the time when the Axle Company, eoinpOsed of Bear, Grove and tithe s, commenced their operatioas at your shop. I mean of all the instruments in evidence, aad including the cup transmitter. Which ones of all these had you invented and made prin' to the beginning of the Axle Company? “ l. The tcaeup itlsll'uti'li‘llt, the tumbler in~trl11m3it exhibit F, the 11—min instainent, exhibit B instrument, exhibit C in‘timnellt, exhibit I, and exhibit A, and the magnetos, exhibit D and exhibit E: those : re the, instruments, as near as I can I'L‘Cullet‘t. Illld I hild inniiiticatiwns (if these instruments. I won’t post'lli‘c’ly “(11/ ”W5 D and E were prior to the 4190f6 Coil/puny, but I know that the time the A, t, SUMMARY. 29 Axle Company was running I had them there; it may have been prior to the starting of the Axle Company; it may be. but I don’t want to be too positive, I refer to exhibit D and exhibit E.” This only carries it within the limits already stated, —- the last of which is the late summer or fall of 1876. We do not suppose the Court will believe that he has forgotten when they were made. If, against the positive testimony of Moore and Springer, to say nothing of other proof, these instrnn’icnts are to be put before our patent, it is the Court which must tell the claimant when they were madc, and not the claimant tell the Court. When the claimant will not swear that the crucial instruments were made before our patent, the Court, as matter of law, cannot so find. The defendants act as it" they believed that memory was a question of yes or no simply. The greatest defect of memory does not lie in the ability to find in the mind some trace of a past event, but in the ability to correctly fix the character of the fact and its date. Non-recollection is much less common than misrecollection. In cases of this character the courts recognize that the dangers they encounter do not lie in entire failures of memory, but in the illusions of memory either as to facts or dates; not in a denial of what was, but in an assertion of what was not. The best writers on the subject all agree that misassociation of events, misrecollcction of dates, attaching to one object that which really was shown or heard or said about another, are the commonest and chief illusions of memory, and very much more common than a loss of all trace of the thing. The writers recognize that the imagi- native creation of memory is most common with persons who have not trained the imagination for use, and therefore do not realize its power and are not conscious of its work; that these errors are most common where the attempt is to recollect a single event which did not specially arouse the person at the time, and which did not ripen into a course of action, and that nothing is so fruitful in producing them as the sentiment of friendship, of clanship, combined with recent, constant and continued gossip about the past. Every witness for the defence has been surrounded by these sources of error. 30 BELL o. DRAWBAUGII. These facts have been repeatedly recognized and acted upon by the courts in cases of this class. " The mind is very apt to blend subsequent information with prior recollections and confuse them together.” — SPRAGUE, J. in Howe v. Underwood, 1 Fish. 162. ” The evidence of the attacking witnesses is often in proportion to the distance in time that one event is removed from the other. Their imagination is wrought upon by the influences to which their minds are subjected and beguilcs their memory.” — SWAYNE, J. in lVood v. Cleveland Rolling Mdl Company, 4 Fish. 530. The courts have stated the nature of the evidence in this case, and made the proper comments on it. “ There are circumstances within the knowledge of all mankind which prove the originality of this invention more satistirctorily to the mind than the direct testimony ofhosts of witnesscs.”—thitney’s cotton-gin ease, quoted in Mott v. Bennett, 2 Fish. 642. ”The evidence tending to show that the machine of Hunt’s was perfected may be divided into three classes. There is the evidence of its product—what Work the old machine did. In the second place, there is the evidence of the recollection of witnesses of what the machine was. And in the third place, there is the evidence de- rived from the remains of the old machine, produced here, and the opinion of experts, founded upon those remains, of what the machine originally was. These three classes of evidence the defendants have presented for the consideration of the Court; and certainly that evi- dence would be entitled to great weight and (mnsideration. standing by itself. But it is encountered by certain frets, indisputable and unquestionable, in this case, which are so entirely inconsistent with some parts of that testimony. that we are called upon to determine which shall yield.”—Hozre v. Underwood, 1 Fish, 162. " His whole conduct for months, as well as his total silence on the subject of any prior invention made by himself in all his intercourse \\iil1 his 21>sociatcs in the contract. with the government otl'it-ers in charge, and with the superintendent and owners of the foundry where the "Wiggins Ferry ’ was fitted up, is the strongest possible proof that no surh invention as he claims had been projected by him. The witnesses who speak of his conversations and sketches in December, 186:”), and early in 1866. as communicated to them with the utmost freedom, with no apparent object, so far as they were concerned, nu1~t either be mistaken as to the time or as to the devices described. Intertstcd as he is in the suit, his own testis molly cannot be allowed to prevail against a course of conduct so utterly at variance with it. It may be true; but we cannot give it ctlect against what he did and did not do, without disregarding the ordinary laws that govern human conduct."frittlanlic War/rs v. firmly, 107 U. S. 205. Giirwit Ginurt at the fittnitat $13M, SOUTHERN DISTRICT OF NEW YORK. AMERICAN BELL TELEPHONE COMPANY ET AL. ’0. THE PEOPLE’S TELEPHONE COMPANY ET AL. BRIEF FOR COMPLAIN ANTS ON FINAL HEARING. This is a bill in equity, with the usual prayers, based on Alex— ander Graham Bell’s speaking telephone patent No. 174,465, of March 7, 1876, and on his patent No. 186,787, for improvements in the apparatus employed. The American Bell Telephone Company is a corporation under a special statute of the Commonwealth of Massachusetts. Its charter, organization and title to the patents are set forth in coniplainants’ record, vol. i, pp. 57—80. The defendant corporation is organized under the general laws of New York; the individual defendants arethe directors of the corpo- ration, and most of them are the persons who initiated the infringe- ment, and organized the corporation for the purpose of doing in its name the acts complained of. The bill was sworn to Oct. 9, 1880, and filed Oct. 20, 1880. YVith it was filed a motion for an injunction pendente lite, which was granted by Blatchford, J., after a hearing. At that hearing it was not denied that Mr. Bell was the first inventor; the defence was that the defendants had neither made nor threatened to make tele- phones. The Court found that the partieswho originated and carried on the scheme had made and used telephones as part of their joint enterprise, and that large threats had been made of such a character a .77“..- e?”— 32 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. that an injunction was required. He granted it Nov. 22, 1880, and it is still in force. The answers were filed Jan. 6, 1881. The replication was filed Feb. 7, 1881. The first proofs were taken Feb. 16, 1881, and the last was taken June 23, 1884. ' The record of evidence consists of the following: —— For complainants: —— / Depositions in chief and in reply, 2 vols. (here cited as complts, i and ii). These contain 1741 printed pages, and include one hun- dred and one depositions, given by ninety«seven witnesses. Depositions and papers in rejoinder and in reply to the surrejoin— der, 1 vol.(complts, iii). These include fifty depositions of witnesses in rejoinder, thirty—eight of whom had not previously been examined. Also eighteen depositions of witnesses, ten of whom had not pre— viously been examined. These latter were " to close” and in reply to the defendants’ surrejoiuder. All these are bound in complts, iii, making pp. 1743—2493. . Exhibits in chief and in reply, 1 vol., pp. 1047 (complts, iv, ex- hihits). Also sundry instruments and some photographs, a list of which is given at the end of vol. 4. The complainants will also refer to the moving papers, in accord- ance with their notice (coniplts, ii, p. 1741). F or defendants .- ——— Depositions in defence, 2 vols. (here cited as defts, i and ii). These include the depositions of one hundred and twenty—seven Witnesses, and contain pp. 1340. Defendants’ exhibits, pp. with the defendants' surrejoinder. Depositions and papers in surrehuttal, 1 vol. (defts, iii, surlntl). These include one hundred and ninety-nine depositions in surre— buttal, one hundred and eighty-nine of Which'were from witnesses who had not before testified in the cause. This volume contains pp. 1140. Depositions and papers in surrejoinder and subsequently (defts, iv, surj.). This includes thirty-eight depositions in surrejoiuder, thirty—one of which were from witnesses who had not before testified in the cause, and two depositions of two new witnesses called at the THE BELL PATENTS SUED ON. 33 close, in all 266 pages. The defendants’ exhibits are bound with this volume. Also sundry instruments and some photographs, :1 list of which is given at the end of the defendants’ volume in surrejoinder. RECAPIT ULATION. Volumes. Pages of Exhibits. Pages of Deps. Depositions. For complainants . 4 1047 2493 169 4 160 2746 366 8 For defendants Total 1207 5239 535 The real subject of controversy is Whether Mr. Bell or Drawhaugh is the first inventor of the speaking telephone. But it is necessary first to know what a speaking telephone is, and what both parties have done about it. The Patents. Alexander Graham Bell’s patent No. 174,465, of March 7, 1876, is the patent for the electric speaking telephone, and its fifth claim is .as follows : —- “ The method of and apparatus for transmitting vocal or other sounds telegraphicallv, as hereinbefore described. by causing elec— trical undulations similar in form to the vibrations of the air accom— panying the said vocal or other sounds, substantially as set forth.” This claim was defined by Mr. Justice Gray in American Bell Telephone Company v. Dolbear et (11., 15 Fed. Rep. 448. " The patent is clearly not intended to be limited to a form of ap- paratus, but embraces a method or process. This is apparent upon the face of the specification. . . . "In the fifth claim, as throughout the specification, the word ‘method’ is evidently used not as synonymous with ‘mode’ or ‘apparatus,’ but asequivalent to ‘proeess,’ just as it was used by Chief Justice Taney in delivering thejudgmeut of the majority of the Court in Morse v. O’Reilly, 15 How. 62,117, as well as by Mr. Justice Grier (who dissented in Morse v. O’Reilly) in delivering the unanimous judgment in Corning’u. Burden, 15 How. 252,267. And the invention claimed is not merely the apparatus described, but also the general process or method by which the wind, or a musical instrument, or the human voice produces in a current of 34 BRIEF FOR COMPLAINANTS ON FINAL HEARING. electricity a succession of electrical disturbances, not sudden and intermittent or pulsatory, but gradual, oscillatory, vibratory or undulatory, so as to give out at the further end of the conducting wire sounds exactly corresponding in loudness, in pitch, and in tone, character or quality to the sounds committed to it at the nearer end. 7 “ The opinion in Spencer’s case (American Bell Telephone Com— pany '1). Spencer, 8 Fed. Rep. 509) clearly points out that ‘ Bell dis- covered anew art,— that of transmitting speech by electricity, —and has a right to hold the broadest claim for it which can be permitted in any case,’ and ‘the invention is nothingr less than the transfer to a wire of electrical vibrations like those which a sound has produced in the air.’ and that his patent, while not covering the abstract prin- ciple, without regard to means, of transmitting speech by electricity, yet is not limited to a particular form of apparatus, but includes the process or method (using the two Words as equivalent), the essential elements of which are 'the production of what the patent calls undu— latory vibrations of electricity to correspond with those of the air and transmitting them to a receiving instrument capable of echoing hem.’ " The evidence in this case clearly shows that Bell discovered that :.rticulate sounds could be transmitted by undulatory vibrations of electricity, and invented the art or process of transmitting such iounds by means of such vibrations. . . . . “The mode or apparatus by which Bell efl'ects his purpose is by 1sing an electro-magnet in the transmitter and another electro- nagnet in the receiver. But the essence of his invention consists iot merely in the form of apparatus which he uses, but in the general process or method of which that apparatus is the embodi- ment. . . . . ~ " The defendants have, therefore, infringed Bell’s patent by using JiS general process or method, and should be restrained by injunc- .ion from continuing to do so.” The same case came up for final hearing before Judge Lowell, and resulted in a decree for the complainants (American Bell Telephone Company v. Dolbear, 17 Fed. Rep. 604). All questions as to the construction, meaning and scope of the patent may fairly be con- sidered as settled by these decisions. The second patent, 186,787, Jan. 30, 1877, is for certain im- provements in the construction of the instruments of the first patent. Recognition of Mr. Bell as like Inventor of the Speaking Telephone. — The history of the principal invention and the litigation under it is briefly as follows : —— MR. BELL RECOGNIZED AS THE INVENTOR. 35 From a period at least as early as the summer of 1874, Mr. Bell aimed to construct an apparatus for the transmission of speech by means of electricity (complts, ii, 1703—5), and at that time had defi- nitely conceived of the method and of an apparatus as set forth in his patent and claimed in his fifth claim. In October, 1874, he dis- closed his invention to Prof. Clarence J. Blake, of Boston (2'6. i, 120— 123, 335-8, 344) ; in March, 1875, he disclosed it to Prof. Joseph Henry (i6. 126). Letters written by him in 1875 show how in‘ tently he was working upon it (61). pp. 126, 129, 133—4, 136, 143, 1146, 147—8). He constructed his first instrument in June, 1875, prepared his specifications himself with his own hands in the fall of that year, swore to his application Jan. 21. filed it Feb. 14, and the patent issued March 7, 1876. The invention was then described by him in a paper read before the American Academy, in Boston, in May, 1876 (27). iv, 67), and was exhibited at the Centennial in June, 1876 (17). i, 160—1). It received from the two leading mem- bers of the judges of that group, namely, Prof. Joseph Henry and Sir William Thomson, reports which are found in the record, and in which, after public and private trials, they declared it to be "the greatest marvel yet achieved by the electric telegraph” (lb. 159—161, 231—6). A long series of notices in the scientific and daily papers show that this verdict of these eminent scientific men was confirmed by' the general sense and appreciation of the Whole community (27). 238—283). The instruments went into commercial use early in the spring of 1877, and have since then, with the utmost rapidity, gone into extensive commercial use throughout the whole World. From this inventor the whole world has, in fact, derived this wonderful instrument; the unexampled consensus of the whole com- munity that Mr. Bell was the first inventor of it is the same conclu- sion which the judicial mind Would draw from that fact. Litigation. ——VVhenever any kind of electric speaking telephone has appeared, the owners of the Bell patent have promptly brought it before the Court, and challenged investigation for their patent. In 1878, after Mr. Bell and his associates had demonstrated the practical success and commercial value of the invention, the West- ern Union Telegraph Company appeared as the first important infringers. They were sued, and after the evidence was all com— . ‘fi’ififi ”av—V... “w. ””1 36 BRIEF FOR COMPLAINANTS ON FINAL HEARING. pleted, became satisfied that Mr. Bell was the first inventor of the speaking telephone, gave up the contest, and submitted to a decree. This is the case of Bell Telephone Company v. Dowel. The next important case was the present one, which came up on a motion for preliminary injunction before his Honor Judge Blatchford in November, 1880. The injunction was granted after a contest, and is still in force. In the same year the complainants sued, in Massachusetts, Spencer, the agent of the Eaton Telephone Company, and, in New York, that' corporation itself. The case went to final hearing, and the Boston case was argued before his Honor Judge Lowell in 1881, by Mr. F. H. Betts for the defence. It was decided by Judge Lowell in favor of the complainants (8 Fed. Rep. 509), and his opinion estab- lished two points: first, that the Bell patent is valid; second, that an apparatus composed of what is known as a variable resistance transmitter, or carbon telephone, or battery transmitter, coupled up with a magneto receiver, infringes its claims. In 1882, a suit was brought in Boston by these complainants against Amos E. Dolbear and others. Motion for an injunction in that case was heard in the summer of 1882, before Mr. Justice Gray and Judge Lowell. The affidavits on that motion were very carefully prepared and were very complete; the case was treated as, and did, in fact, receive the consideration commonly given at, a final hearing. It re— sulted in a decision for the complainants, and an injunction Jan. 24, 1883, accompanied by an opinion of Mr. Justice Gray (15 Fed. Rep. 448), in which he states that the decision in the Spencer case estab- lished the validity of the patent. The Court further decided that the Bell patent is, in fact, a patent not for a particular form of ap— paratus, but for a method as well as an apparatus, and held each branch of the claim to be infringed by the use of any apparatus in which ” electrical undulations similar in form to the sound waves” are an efficient agent in the transmission of speech, although the appara- tus used be a microphone transmitter and a condenser receiver; the transmitter in that case being the same in kind as that used by the defendants here, and the receiver in that case much more different from the instrument specifically described in the patent than that used by the present defendants (v. p. 33, supra). ’ PREVIOUS SUITS.—INFRINGEMENT. 37 That case went to final hearing, and resulted in a decree for the complainants, with an opinion by Judge Lowell, Aug. 25, 1883 (17 Fed. Rep. 604). Itfii'ingemML—The evidence of infringement in this case, of itself, leaves the question entirely free from doubt. The claim of the patent as construed by the Court in Dolbcar’s case covers any apparatus in which the voice, acting on the transmitter, causes electrical undulations substantially similar in form to the sound waves, and in which these undulations, passing through one cir- cnit or through two or more circuits connected by an induction coil, or other device, to the receiver, there throw the receiver into similar vibration so as to reproduce the sounds uttered into the transmitter. The gist of the claim lies in the production and ntiltzation of electric undulations similar in form to the sound Waves as the efficient means for the transmission of speech. This was the great noxelty of Mr. Bell’s apparatus. That the defend— ants” apparatus transmits speech by producing and utilizing these undulations is absolutely certain. [Their structure cannot be distinguished except in more details, immaterial for the present purpose, from the various forms of appara— tus which have long been known in and used by the community for the purpose of practising Mr. Bell’s inventions. The dcfendauts’trans— mitter is copied from the well-known Blake transmitter, made by the plaintiffs, with no variation except in the mere mechanical arrange- ment of some details, not affecting the character of the motions nor kind of operation performed. It consists, like the plaintitf’s arrange— ment in the Blake transmitter, of a vibrating diaphragm carrying one electrode, and another electrode in contact with the first, mounted on a mass large enough to otter considerable inertia, and so mounted that its continual tendency is to preserve contact, and to return to contact if ever it is accidentally driven away. This con- trivance, known as the microphone, has been for five years a uni— versally accepted device for the production of the current specified in Mr. Bell’s patent, and it is essentially the same instrument which has been held by the court in the Various cases referred to to infringe the Bell patent. This is more fully explained in Prof. Cross’s pre— liminary affidavit, put into the case by the defendants. Prof. Cross . lessee: a” w'rwxwwz‘fi M... w 38 Inner FOR COMPLAINANTS ON FINAL HEARING. also testifies that the instrument of these defendants cannot be dis- tinguished in these particulars from instruments used by defendants in the other suits. In fact, the particular details of the defendants’ instruments are patented as improvements intendedto improve the well—known kind of operation, and not.to change it. The infringement of the second patent, 156,787, Jan. 30, 1877, for improvements in the apparatus is set forth in Prof. Cross’s depo- sition (complts, i, 40). The preliminary injunction established the fact of infringement, , and we do not understand that there is any contest about that. The deposition ofthe defendants’ expert raises none. On the contrary, his Ans. 25, (defts, ii, 1219,) admits in terms that the defendants’ apparatus “ when operated by the voice will produce electrical undula- tions in the current t‘aversing the circuit similar in form to the air waves by which these electrical variations are produced,” -—- which is substantially the language of the claim. Tire Subject Matter of the Invention. The scientific facts concerning the transmission of articulate speech, with which this patent in controversy has to deal, have been sufficiently set forth in the deposition of Prof. Cross (complts, i, 21, ct seq.), and more briefly in the decisions of the courts referred to. They are not here denied (defts, ii, 1187; app. 264), but none the les~ need to he understood. .Nature of Articulate Speech. — The differences between one sound and another are due to the differences in the air vibrations which strike the ear. Three characteristics of sonorous air vibrations are especially important: one is the length of the to-and-fro path over which the air particle moves, —that is, the amplitude of its vibra- tion; another is the number of times per second it moves over its path, no matter What the length of the path may be; and the third is the character of the motion it performs in passing over its path; and each of these may vary without any change in the other. Thus, if it has one four hundredth of a second allowed it to perform one to or fro motion, it will travel a longer or shorter path in accordance NATURE OF ARTICULATE SPEECH. 39 with the amount of force applied to move it, and upon the length of its path, other things being equal, depends the volume or loudness of the sound. It may be caused to move over a given length of path a greater or less number of times per second, and according as this frequency is greater or less the pitch of the sound which the ear rec— ognizes is higher or lower. If the conditions imposed upon it by the forces which move it are such that it is compelled to pass over a certain length of path in a certain period of time, it is still possible for it to move over that path in that time in a great many different ways. It may move with a uniform rapidity from one end to the other, and stop suddenly; it may move with a rapidity gradually and uniformly increasing, and then diminishing; it may move fast a little ways, then slower, then faster again, then slower. The manner in which it performs its journey, irrespective of the length of the journey or of the time employed, constitutes what is called the “ form ” of the vibration, Differences in the form of the vibration affect the car not by changing the pitch of the sound, nor the loudness of the sound, but are detected as differences in what is called the " quality ” of the sound. Articulation is but a kind of quality, and the differences in the air vibrations which produce the sensations of one word from those which produce the sensations of another are due to differences in the ”form ” of the vibration. The form of the vibration may he the same, although the period he changed or the amplitude be changed, for we recognize the same word, although it be spoken in a louder voice and in a shriller voice; but if theform of the vibration be changed, the quality or articulate character is changed, though the pitch and loudness remain the same, for a sentence is understood if every Word spoken in the same monotone, and Without change in the strength of the voice. There is another mode of studying the quality of sound. ‘ Fifty years ago it was demonstrated as a mathematical proposition that the curve by which We now represent that vibrational movement of an air particle which gives quality to sound was the algebraic sum of a set of simultaneous simple sinusoidal curves of different periods and amplitudes. The simple sinusoid is the curve which represents the motion of a simple pendulum or a theoretical vibrating spring. It followed from that that the force which moved the air particle could 4:0 BRIEF FOR COMPLAINANTS ON FINAL HEARING. be represented by or was the mechanical equivalent of the simulta- neous action of several forces, each of which, if acting alone, would produce the motion represented by each of those simple sinu- soids. A little more than twenty years ago, Helmholtz proved by experi- ment that certain sounds, as those of a tuning-fork properly mounted and bowed, corresponded to simple pendulous or sinusoidal vib'ations of the air. These he called simple sounds, or musical sounds; one differed from another in pitch, and perhaps in loudness, but in nothing more. All other sounds, as for example that of the human voice, could be experimentally analyzed into a series of sounds of different pitch and loudness, siumltaneously produced and blended into one before they reached his ear. He also constructed an analyzing device, known as the Helmholtz resonator, consisting of a vessel en- closing a volume of air Of a peculiar size and shape. When the sound of the voice passed through this to the ear, the particular one of the mingled tones for which the instrument was tuned was re-inforced and all others were diminished, and so the listener, by employing different resonators, could pick out at will each of the mingled notes. Of these various notes, the loudest is almost invariably the lowest in pitch. This was called the fundamental; and it was this which gives to the whole what we call the pitch of the whole, while the other notes, called the overtones, or upper partials, give it quality. The difference between a note sounded by a tuning-fork and what the car recognizes as the same note sounded by the voice, or a violin, flute, etc., consists in the weak overtones added to the strong fundamental; the fork produces the fundamental alone. It is con- venient to say, therefore, that quality or articulation is due to the overtones present. Considering the enormous variety of sounds which the ear needs to distinguish merely in carrying on conversa- tion, and the small limits within which all the overtones must exist, it is obvious that the didereuce between the mixture which produces the sensation of one word and the mixture which produces the sensation of another must be almost inconceivably minute. These notes must be blended. If, by the aid of a resonator, or by a peculiar sensitiveness of the faculties which a few persons possess, we should consciously analyze them, we should perceive NATURE OF ARTICULATE SPEECH. 41 'several simultaneous notes, but should, in whole or in part, lose the sensation of quality. Such analysis, therefore, partially or entirely destroys the apprehension of speech. It will be observed, also, that differences of quality do not merely depend upon what notes are present, but upon the proportion in which each enters. We shall commit no error in mathematics and physics if we con—- sider every articulate sound as made up of a fundamental and over- tones; but it is desirable, also, to preserve a clear idea of the move- ment of the air particles which produCe it. We do not have one particle engaged in moving was to produce one, and another so as to produce another, as were the reeds in Helmholtz’s compounding apparatus; all the particles have, at a given instant, the same kind and character of motion. Nor do we have the same particle per— forming two ditferent motions at once; but when the sound passes from the simple tone of a tuning-fork to an articulate sound, the vibrational movement of each particle is no longer a simple pen— dulous motion; it is highly complex, and changes its character or form at each change in an overtone. ' Reis had constructed an apparatus in which a membrane, vibrated by sound waves, made and broke the circuit a number of times per second, which corresponded to what the ear recognized as the pitch of the sound —that is, the pitch of its fundamental tone. This inter- mittent current, acting on a distant receiver, set it into vibrations, the frequency of which vas the same as that of the intermittences. The resulting sound had, therefore, the same pitch as the sound at the transmitter. But it was only pitch which was or could be copied by this operation. The quality of the sound produced at his receiver was enti1ely that due to the structure of the receiver, and not at all a copy of that at the transmitter. Speech cannot be thus transmitted. Reis, doubtless, hoped at first to transmit speech. His writings show that he was not sufficiently skilled to know why he did not succeed. But his results convinced him and others that he could not transmit speech, and his instrument, well-known and sold by apparatus makers, W'lS known, sold and used as an interest— ing scientific toy only. This was its history , and this has been de- cided to be its character in Spencer’s case, and HI other adjudged cases. Concerning this, both sides are here agleed. 42 BRIEF FOR COMPLATNANTS 0N FINAL HEARING. The speaking telephone.— There is no instrument which employs such delicate forces, performs such intricate motions, or requires greater accuracy than the speaking telephone. The total path of the vibrating air particle in ordinary speech is, perhaps, one millionth of an inch; its period (half vibration) is use hort as 1160‘ of a second, with many voices. lVithin this small limit of time and space lie packed all the variations which distinguish from eachother all words of all languages. The minuteness ofthese distinctions escapes computation and statement, and yet the telephone acts by taking note of them and reproducing them. The electrical force available in the mag— neto instruments has been reckoned at T075566 of that due to a single cell of battery, and it is variations of more or less Within this max— imum limit that give rise to the speech heard at the receiver. Mr. Bell’s patent undertakes to provide a vibrating body ofa con-1 siderable surface at one station, and a Vibrating body of a consider- able surface at the other. The sound Vibrations due to the voice at the transmitting station throw the diaphragm there placed into vibra— tions of their own form or character, and if the diaphragm at the re- ceiving station can be made to perform vibrator-y motions of the same character, these will in turn be imparted to the adjacent air, and the same sensation of sound will be produced on the ear of the listener there as 011 the ear of the listener at the transmitting sta- tion. Mr. Bell discovered that he could accomplish all this by means of electricity, if he employed the transmitting diapb ‘agm to produce electrical changes which in their relative succession, violence, ampli- tude and character, or, to use the technical \vord,f07‘m, corresponded to theform of the air waves constituting the sounds which were made at the transmitting station, and which he wished to produce the sen- ation of upon the ear of the listener at the receiving station. That was his method, and he devised and described in his patent an in: strument which would accomplish it. The harmonic telegraph—At the time he made this invention he was working upon another subject, to wit, harmonic telegraphy. To carry out that invention conveniently it is desirable, if not neces- sary, to produce by means of one transmitter a series of electrical waves of a certain frequency, which in turn shall cause vibrations of the same frequency at their particular receiving instrument, and THE SPEAKING TELEPIIONE.—-TIIE HARMONIC TELEGRAPH. 43 at the same time, by means of another transmitter, to produce elec- trical waves of a different frequency, which shall travel over the same wire, and at the receiving station shall throw a second receiver into vibratory motions of the frequency of the second transmitter. In this way each transmitter will give vibration to its own correspond- ing receiver, and not to the other receivers, and as these vibrations are made frequent enough to produce sound, each transmitter will cause the listener at the receiving station to hear the note from its own receiver when it works, and not when it does not work. A, series of startings and stoppings for each transmitter will cause the listener at the corresponding receiver to receive the sensation of a succession of sounds and silences unheard by those at the other re- ceivers, and these may be so spaced as to represent the dots and dashes of the Morse alphabet; this operation can be simultaneously ‘ performed by each set of transmitters and receivers, although all be connected to a single wire. As many messages can be transmitted as there are notes, subject ali’ays to certain limitations due to the mechanical and electrical operations which have to be per- formed. This operation has not necessarily anything to do with the tran~mission of speech. It generally requires for its best efficiency contrivances which are fatal to the transmission of speech. But one style of instrument which Mr. Bell devised for the harmonic tele— graph did have a novel kind of electrical device, which he afteri Yards utilized in the speaking telephone. But he utilized it for the two purposes in a very different way and by very different kinds of contrivances. For the harmonic telegraph, as he‘made it, it was essential that each instrument should vibrate to its own particular pitch and none other, while the character or " quality” of the sound acting upon it or produced by it is of no con— sequence. For the speaking telephone, it is essential that the instru- ment have, as nearly as possible, no note, no will of its own, but shall respond equally to all pitches, while the one essential thing is that -it shall take note of the quality of the sound acting upon it, and copy that quality in the sound produced by it; and furthermore that the operating cause at the transmitting station which produces all the changes shall be the sound waves themselves. “a- .. Twzt —; 2"» “a t it P, 44 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. State oft/Le art. — Such is the electric speaking telephone. What was the state of the art before Mr. Bell’s invention? As early as 1854, M. Bonrseul, in France, published a theory upon that sub- ject and propounded a method which was this: Have diaphragms at two ends; have a wire between; have a battery on the line; break the current of that battery by one diaphragm, and the dia— phragm at the remote end will respond to the vibrations of the diaphragm at the speaking end. That is the general principle of the Reis machine. Bourseul was a man of science, however, and he said: "I foresee the trouble, which is that this mode of trans— mission will only transrnit pitch; that the vibrations of the one will correspond to the vibrations of the other in number, but the control must cease in the intervals when the electric current is not flowing. I foresee that; perhaps that can be overcome. I have tried some experiments; I do not see the way‘ myself; butI point it out for investigation.” The scientific mind was engaged on that problem for more than twenty years. Reis produced his machine. It was exactly the thing indicated and essentially described by Bourseul. Reis thought, as Bourseul indicated, that he was going to make a talking machine. He thought so, and said so. But after a dozen years of work he became satisfied that he had not got a talking machine, and he so wrote and published. 'then Judge Lowell delivered his opinion on that subject in Spencer’s case, he said that Reis tried to make a speaking telephone, but that it was the regret of his friends that he did not succeed in doing it, and that a century of Reis would never have led to the Ball. Why ? Because the idea and mode of operation were funda- mentally different and diametrically opposite. One man was trav- elling to the West, and the other one to the East, and the circum- ference of the globe had to he travelled before they could ever meet. That was Reis. He failed; he knew that he had failed; he said so in print. But he did not know why, nor 110w to get out of the abySs. This was the furthest state of the art. Then came Prof. Bell, whose life had been devoted to vocal science. He- had studied sound, and all the science of acoustics; he had the preparation and the training which could lead up to a dis— covery of this sort. He conceived this idea: discard the circuit- THE SPEAKING .TELEPHONE. MR. BELL. 45 breaker plan, connect the transmitter with the receiver absolutely, let one have hold of the other always, and then impress upon the current of electricity the form of waves corresponding with the form of sound waves in the air. When you have done that, then the transmitter will send to the receiver the quality, the “timbre,” as the French word is for it,——the quality of sound; a similar sound to that which is spoken and uttered to the transmitter. That was the brilliant conception which does not appear upon any records in the world before that day. " How shall I do it?” said he. How? The first thought was an armature vibrating in front ofan electro-magnet. That he knew, as all electricians knew, generated a current of electricity. He knew that that would generate a current of electricity exactly similar to the mo- tions ofthe armature which created it. But how shall human voice cre- ate power enough to do thisthiug? How? He looked at that question ; it seemed impOssible of solution, but that only determined him to surmount the difficulty or turn its flank. At a subsequent day, after all that was done, the scientific men of the world held up their hands in astonishment and said, "How could a man think of such a thing as that?” But he did think ofit, and, while trying for another way, which he ultimately found, he found out experimentally that the armature had a power which no electrician would have dreamed of. Mr. Bell’s History. Mr. Bell’s deposition, taken in the summer of 1879, in the Dowd case, was put in here by stipulation (complts, ii, 105—200) . He was afterwards cross-examined at length in this case (complts, ii, 1572- 1703). Mr. Watson, formerly Mr. Bell’s assistant, made a deposi- tion in the Dowd case in the summer of 1879, which has been stipu- lated in here, and he has also been cross-examined (cornplts, i, 200). Subst-tntially the same course has been pursued about Dr. Clarence J. Blake, to whom Mr. Bell disclosed his invention in 1874 (coniplts, i, 335; app. 518), and Edward L. Wilson, who assisted Mr. Bell after the first patent was issued (complts, i, 350), and Mr. Alexan- der Melville Bell, the father of the patentee (complts, ii, 1703, app. 502). Prof. Cross also had early knowledge of Mr. Bell’s in~ vention, 1875 (complts, ii, 1727). 46 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Mr. Bell’s history can be read in substance from writings and memoranda made'at the time. In the summer of 1874, he visited his father, Prof. Alexander Mel— ville Bell, in Canada; among the subjects of their conversation dur— ing that period, his father notes in his diary : —~— " Sunday, July 26, 1874, Electric speech (?).” At Christmas, 1874, he made another visit, followed by the fol— lowing entries in his father’s diary : — " Sunday, Dec. 27, 1874. Long talk on multiple teleg. and speech trans. Al.* sanguine.” “ Tuesday, Dec. 29, 1874. Talking half the night, motor and telephone.” In October, 1874, Dr. Blake wrote to him that Mr. Gray had written that he was at work on the transmission of vocal sounds. Mr. Bell immediately went to Dr. Blake for the purpose of saying to him that he was at work upon the subject and explaining to him his plans, in order to establish the point he had reached before he had heard anything of Mr. Gray’s work. It turns out, however, that the Doctor spoke hastily, and that Mr. Gray said nothing about vocal sounds at all, and was not engaged upon the subject at the time (Dr. Blake, complts, i, 342—3; app. 518). Nevertheless, Mr. Bell explained to Dr. Blake his views and plans fully, and described to him the apparatus which he proposed to use. The method and the apparatus which he had then conceived of and disclosed to Dr. Blake are precisely those which are shown and described with reference to Fig. 7 in the patent (complls, i, 335—350). The date of this interview (October, 1874) is fixed by the letter from Dr. Blake to Mr. Bell, which gave rise to it, and from sketches which Mr. Bell made at the time, and‘ which were preserved and produced. The theoretical perfection ofthe method and apparatus then disclosed was not doul)te(l,and could not be by any one who understood it ; but Mr. Bell thought that the causes acting upon the instrument were so slight that no practically efficient result would ensue, and this opin- ion was one which every electrician would have agreed with at the time (Pope, ans. 7, complts, ii, 1293—4). He set himself to work, there— ’3‘ Alexander Graham Bell. HOW MR. BELL INVENTED THE SPEAKING TELEPHONE. 47 fore, to think of some other way by which the vibrations of a dia— phragm taken up from the speaker’s Voice could be made to produce more efficiently precisely the same electrical undulations which he contemplated, and perceived were sufficient in kind for the trans— mission of speech. Dr. Blake’s testimony is in full in app. p. 518. Prof. Cross testifies (complts, ii, 1727) :— "A. 36. We [Prof Bell and I] conversed together during that time [winter 1874—5] regardingr the transmission of speech. I understood that he proposed to do this by means of electrical undulations, and that these undulations were to be produced by the vibrations of a reed in front of a magnet. At some time during the winter he com— municated to me the idea of vibrating the reed by means of a mem— brane. ‘The subject of the transmission of speech was one which evidently occupied his thoughts, and to accomplish which he was striv- in;r to develop an efficient inethm .” "A. 37. As soon as the method itself was described, I saw that it was theoretically perfect, and, therefore, in theory, adequate to the transmission of speech.” “ A. 38. I supposed at that time that the efl'ect produced by the vibration of an armature would he entirely too small to accomplish the desired end.” "A. 41. I understood that his means were very limited, so that he was obliged to confine himself very closely to his classes, which necessarily occupied a great part of his time. I understood, also, that he was under obligation to certain persons to devote his attention and experimentation exclusively to multiple telegraphy.” In the last of February, or the early part of March, 1875, Mr. Bell was in W'ashiugton about some business connected with his harmonic telegraph patents and applications, and saw Prof. Henry. That in- tervich with Prof. Henry is described in a letter which he wrote to his father and mother, dated March 18, 1875 (complts, i, 125). He described to Prof. Henry certain experiments in the production of sound by electricity which are not material to this case, but they excited Prof. Henry’s interest, and induced him to ask Mr. Bell to repeat them in his presence. Mr. Bell’s letter continues as follows —the italics and capitals are his own (1). 126) :— "iVe appointed noon next d ay for the oxperim. nt. I set the instru— ment working, and he sat at a table for a loner time with the empty coil of wire against his ear, listening to the sound. I felt so much encouraged by his interest that I determined to ask his advice about the apparatus I have designed for the transmission of the human voice by telegraph. I explained the idea, and said : — 48 BRIEF FOR COMI’LAIN’ANTS ON FINAL HEARING. mWhat would you advise me to do —-—publish it and let others work it out, or attempt to solve the problem my self? ’ He said he thought it w is the germ of a git-at invention, and advised tne to \volk at it myself, instt 11d of publishingr I saidl that I tecoonized the. fact that there were mechanical diflimlties in the way that rendered the plan impracticable at the present time. I added that I felt that I had not the electrical knowledge necessary to overcome the difficul— ties. IIis laconic answer was, ‘ GET IT.’ ” I cannot tell you how unit-l1 these two words have encouraged me. I live too much in an atmosphere of discouragement for scientific pur- suits. Good 1 . . is unfortunately one ofthe cut ()ono people, and is too much in the habit of looking at the dark side of things. Such a chimerical idea as telegraphtng 1101 (cl sounds would indeed to 111036 minds, seem scarcely fe 1siblc enough to spend time in Wo1king over. I believe, however, that it is f asible, 11nd that I have got the cite to the solution of the problem. ”Prof. Henry seemed to be much interested in what I told him, and cross-questioned me about my past life, and specially wanted to know where I had studied physics.” . . . It is impossible to read that letter without feeling that he had-per- fectly and definitely conceived of an apparatus for the transmission of speech which impressed Prof. Henry, and which Prof. Henry be— lieved to be, theoretically at least, sufficient for the purpose, needing only good technical knowledge to reduce it to practice. The earlier part of the letter also shows the great strain that Mr. Bell was under in respect of his other electrical work and the contest which was impending about it. And it shows the courage with which, having no means of support whatever except his daily earn- ings as a teacher, he resolutely gave up his professional work to de- vote himself to electrical inventions. The early part of that letter is as follows :— "292 Essnx STREET, SALEM, March 18, 1875. “Dear Papa and Illumma: "I have just returned from my trip to New York, thoroughly woln out, found yout letters of the 14th inst. awaiting me. I am now beginning to 1ealize the cates and anxieties of being an inventOI. In ordet to complete the apparatus 11s thotoughly as possible, I have decided to give up all ptofessional work f'ot some weeks. I have cput off all pupils and classes until the 12th of April. Flesh and blood could not stand much longer such 11 st 11in 11s I have had upon me. Ptofessional wo1k is all in confusion, and the only way is to cut the Gordian knot and throw up everthing till the end is 110w MR. BELL INVENTED THE SPEAKING TELEPEONE. 49 achieved. I long to write full accounts to you, and I have delayed writing in order to give a connected narrative of the whole. You Seem to think that my anxieties are over, when in truth they are r ‘ally only beginning.” May 4, 1875, he wrote a letter of that date to Mr. Hubbard. Of course we know that the transmission of ti/nln'e or quality means the transmission of speech, and this letter shows how fully the subject occupied his mind; it shows that the magneto plan of transmission (disclosed-to Dr. Blake and afterwards described in his patent) had been thought of by him, considered sufficient in character but lack- ing in strength, and that he was then engaged in devising an alter- native method of producing electri ":11 undulations in which the voice should serve merely to control the force of a battery current. The letter contains the following (complts, i, 129) :— " Another experiment has occurred to me, which, if successful, will pave the way for still greater results than any yet obtained. The strings of a musical instrument in vibrating undergo great changes of molecular tension. In fact, the vibration represents the struggle between the tension of the string and the moving force im- preSsed upon it. I have read somewhere that the resistance offered by the wire to the paSsage of an electrical current is affected by the tension of the wire. If this is so, a continuous current of electricity passed through a vibrating wire should meet with a varying resist— ance, and hence a pulsatory action should be induced in the current. If this turns out to be the case, the oscillations of the current should correspond in amplitude, as well as in the rate of movement, to the vibrations of the string. One consequence would be that the timbre ot' a sound could be transmitted. The plan for transmitting timbre, that I explained to you betore, viz., causing permanent magnets to vibrate in front of clectro—magnets, is chiefly defective on account of the t'eebleness of the induced currents. It the other plan is success- ful, the strength of the current can be increased ad libitum, Without destroying the relative intensities of the vibrations.” Mr. Bell testifies (complts, i, 130) that if the wire device here alluded to for converting vibrations into electrical undulations had been successful, he proposed to utilize it for the speaking telephone by attach- ing a Wire to he vibrated to a stretched membrame for the trans- mitter, and employing for the receiver the reed membrane receiver, which is the instrument, Fig. 7, of his patent. The experiment, however, did not succeed. 50 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. He wrote to his father and mother another letter (complts, i', 133) :— " SALrn, MAss., May 24th, 1875. "Dear Papa and Mama: "I am so interested in telegraphy and science that I find it, impos— sible to write freely about anything else, but I teel that at the pres- ent time you an s larcely be inclined to listen to anything I have to say on such subjects. “ Since I gave up professional work and devoted myself exclu- sively to telegraphy, I have been steadily gaining health and strength, and am now in a fit state to encounter Mr. Gray or any one else.” He then describes certain telegraph contrivanees he was at work on, one of which was the multiple harmonic telegraph on which Gray was also engaged, and continues: — " Every moment of my life is devoted to study of electricity and to experiments. The subject broadens. I think that Ute transmis- sion of {/26 human voice is much more nearly at hand than [lead sup- posed. However, this is kept in the background just now, as every eflort is to be made to complete the autograph arrangement, so as to have it used on some line.” . . . "I fear that this telegraphic business may force me to remain the greater portion of the summer here, but I cannot tell yet, so many details have to be worked out. My inexperience in such matters is a great drawback. However, Morse conquered his electrical diffi- culties, although he was only a painter, and I don’t intend to give in either till all is completet .” [The italics are ours] It is clear from this letter 110w fully the subject of the transmission of speech then occupied his mind, and that he was continually study- ing the problem with a View to think out and overcome the difficulties which he supposed it presented, and to overcome them not by a conception of a difierent method, but by devising instruments to effectively carry out the perfect method already invented. On the 2d of June, 1875, he was experimenting with his har— monic telegraph, having in circuit several receivers, each of which was of the form Fig. 5 of the patent, consisting of a steel spring clamped to one pile of the electro-nnxgnet, and projecting over the other pole. An accident set one of these receivers in vibration, and he found to his surprise that the reed of the other receiver was also thrown into vibration. It immediately flashed upon his mind that the ditfieulty which had oppressed him for many months, to Wit, now Mu. BELL INVENTED TIIE SPEAKING TELErIIONE. 51. that the sonorons Vibrations of a small piece of metal in front of the pole of an electro magnet would not be sufficient to produce audible ell‘ects, was an imaginary difficulty, and that such effects were pro— duced. He instantly caused a reed to be plucked repeatedly to satisfy himself of the fact, and the whole meaning of it dawned upon him. This apparatus would make a transmitter, and it would not only make a transmitter, but, for the first time in the history of the world, the action of the transmitter Would con— trol the loudness of the sound at the receiver. He knew as a fact that the demonstration that the apparatus would practically do that was, to any one who appreciated the theoretical operation of his pro— posed magneto telegraph and magneto speaking telephone, a certain demonstiation of ultimate success. He wrote that day to Mr. Hubbard (complts, i, 139) :— " SALEM, MASS., June 2d, 1875. “ Dear Jllr. [Inboard .- “I have accidentally made a discovery of the very greatest im- portance in regard to the transmitting instruments. Indeed, so important does it seem to me, that I have written to the organ factory to delay the completion of the reed arrangement until I have had the opportunity of consulting you. ”I have succeeded to—day in transmitting signals without any bat- tery whatever. “ The musical note produced at the receiving end was sensibly the equivalent of that at the transmitting end in load/was as well as pitch.” He repeated the experiments the same day with another magnet, and his answers, 71—74 (complts, i, 137—140) state the views he then entertained. He immediately ordered an apparatus with a stretched membrane and reed, such as he had described to Dr. Blake, but it's defective construction was such that as soon as battery power was put to it the membrane was broken. Mr. Bell did not vait [0 make the second one, but endeavored to use one of his reed receiv- ers, Which he had already, destroying its normal rate by pressing it against the ear to dampen it. He devoted himself during the month, by study and experiment, to find some means of increasing the intensity of the currents, for he never had any doubt about their accuracy. He had reached the point where he realized and correctly realized that his only work lay in the application of technical skill to 52 BRIEF FOR COMPLAINANTS ON FINAL HEARING. increase the force of the currents and the ctfcctivetieSs of the kind of operation. He wrote, June 28, 1875 (complts, i, 14) z — " I feel sure that a study of Ladd’s or VVilde’s magneto electric machine will reveal a means of increasingr the intensity of the induced currents. 1 am told that Prof. Levering has one of \Vilde’s instru- ments in his possession, so I shall call upon him to-morrow for infor- mation concerning it.” The same letter describes experiments with apparatus like Fig. 5, in which he seems to have got a larger vibration of the receiver and louder sound than he had ever obtained before. So tar as the actual transmission of speech was concerned, the re- sults he then obtained were trivial. But they were significant. For the first time. so far as was known, the voice of the speaker, by means of the true kind of a current, had produced a sound. Mr. Bell states the condition of his mind at that time as follows (ans. 92, complts, i, 145) :— " I considered that the experiments demonstrated the practicability of transmitting articulate speech by instruments having the same mode of operation and principle as these stretched membrane instru~ tncnts, and that it was only necessary to make further experiments to ascertain the best arrangements of the parts.” This was true. At that time no man, except Mr. Bell, could have said this of any method or apparatus constructed, devised, or even thought of, — unless Drawbaugh can prove his claims. " Int. 179. Were you or were you not discouraged by these dis- couraging results? . "Ans. I was not; I never wavered in a firm and full belief that I had solved the problem of the transmission of articulate speech elec— trically, and that the apparatus we had constructed could be used for that purpose.” The discovery of America, and the consequences which have fol- loWed from it, cannot be more surely traced to the voyage of Colum- hus than the speaking telephone can be to what Mr. Bell had thought out and done, that summer and during the preceding year. If he had instantly published a description of the instruments he had made. and the Way in which he intended them to operate, the world would have had the speaking telephone. It did, in fact, lead him to pub- lish that description, and to give the speaking telephone to the World. HOW MR. BELL INVENTED THE SPEAKING TELEPHONE. 53 If Philip Reis had published an account of these instruments and the way they were intended to work, instead of what he did pub- lish, the world would have had the speaking telephone fifteen years earlier than it did, for the description Mr. Bell was then ready to make could not have been put into the hands of skilled workmen without producing speaking telephones. In the language of the court, in Spencer’s case, such instruments as would have been made from it would have “ talked, and in the way pointed out.” He then proceeded to take out a patent in which he described, for instruments and for plan of operation, nothing but what he intended to describe, and knew how to describe, in the summer of 1875. \Ve know now why he did not obtain better results. All the ini— portant paits of these instruments remain, and the apparatus has been reconstructed in exact accordance with them. This is not a case where, as with the circuit-breaker and the microphone, a slight change can alter the whole character of the instrument. The recon- structions cannot differ, unless in mere workmanship. In the Dowd case in 1879 the reconstructed instruments were taken by a number of witnesses to the precise place in the Workshop where Mr. Bell tried the originals in 1875, and no words could be made out. They were immediately taken to a quiet place and conversation was car- ried on. This is put in evidence here. In this case two sets of than were made (exhibits Nos. 49, 50, 51, 52), and newspaper para- graphs were rcad through them in the presence of the defendants counsel and expert witness. See for all this, eouiplts, i, \Vatson, ans. 24, p. 206; ans. 112, p. 307; Dr. Blake, ans. 12, p. 339; Prof. Cross, vol. ii, pp. 1708—1720, and particularly pp. 1715— 1720 and app. 506; Mr. Bell, pp. 1579—1585. Aug. 14, 1875, Mr. Bell wrote a letter of considerable impor- tance (complts, i, p. 147). It shows that— he believed that he had made a great invention involving a great principle, and, although he had not developed it to the point needed for commercial use, — or, as be expressed it, use on " actual telegraph lines,” —he thought he had gone far enough to patent it. The invention consisted in the creation and employment of electrical undulations similar in form to the sound waves, and he insisted that whatever sounds could be transmitted by the air, including “spoken utterances,” would be transmitted by these undulations, and he believed that his apparatus ;-— 1......“ 1"" n .11.. an 1~.v1—4.~ 9 54: BRIEF FOR COMPLAINANTS ON FINAL HEARING. was sufficient to accomplish it. Naturally, writing to Mr. Hubbard, who was interested in the multiple telegraph he held that out to him ; but he also dwelt much 011 the speaking telephone. The letter is as follows (complts, i, 147; ii, 1675) z—— " SALEM, MAss., Aug. 14th, 1875. “ DEAR MR. HUBBARD. ' "On glancing back over the line of electrical experiments, I recognize that the discovery of the magneto- electric c111'1e11t gen- crated by the vibration of the armature 0tp an electro— —u1agnet in tront 0t one of the poles is the most important point yet reached. I believe that it is the key to still greater things. " I‘he effects produced, though slight 111 themselves, appear to me so meat in ploportion to their cause, that I teel sure that the futule “ill discover means of utilizing currents obtained in this way on actual telegraph lines. “ So important does it seem to me to protect the idea that I think some steps should be taken immediately towards obtaining '11 caveat; or patent fo1 the use of a magneto- elcet1ic current whether obtained in the way stated above (by the vibration of permanent magnets in front of electro- -11n1gnets), or in any other way. I should zDivish to protect it specially, as a means of transmitting, simultaneously, musical notes ditlertng 111 mtensih/ as Well as in pitch. " I can see cle arly that tl e magneto electric current will not only permit of the actual eop_\i11g of spoken utterance-e, but of the simul- tancons transmission of any number of musical notes (hence mes— sages) without eont'n ion. ” [he more I think ot it the more I see that the method of making and breaking (ontact so many times per second is only thefirst slage in the development of the idea. “ When we can create a pulsatory action of the current which is the exact equiwlent ot the ac‘1ial impulses we shall certainly obtain e1x1ctly similar results. Any number of sounds can t' avel through the same :1i1 without confusion, and any number should pass along the same wire. "It should even be possible for a number of spoken messages to traverse the same circuit simultaneously, for an attentive ear can distinguish one voice from another, although a number are speaking together. " Don’t you think it would be well to take out a caveat for the use of the magneto electric cuirent? “In its prt sent undeveloped state it might be unwise to let Gray know anything about it, unless, indeed, we could secure the princi- ple of it in a patent. “ Yours respectfully, "A. GRAHAM BELL. “GARDINER G. HUBBARD, Esq., Cambridge.” HOW MR. BELL INVENTED THE SPEAKING TELEPHONE. 55 So certain was 311'. Bell that he had reached the transmission of Speech that in this letter, addressed to one interested in his multiple telegraph, and paying the expenses for that, but not then interested in the telephone, he was urging upon him the importance of one branch of his discovery for his interests also. "I can see clearly that the magneto electric current will not only permit of the actual copying of spoken utterance, but of the simul- taneous transmission of any number of musical notes (hence mes— sages) without confusion.” [The italics are in the original.] The whole letter is of this tenor. He knew that more remained to be done before the results of his invention would be all that was desirable for the profitable commer— cial use in multiple telegraphy which Mr. Hubbard had in view, that is, before it could be "utilized on actual telegraph lines.” But the letter unequivocally indicates that he believed he had made a great invention, involving a great principle, and that he thought it was far enough advanced to be patented. That principle concerned the tying together of sonorous vibrations and electrical undulations. The fact which he finds in this he expressed by saying :— " When we can create a pulsatory action of the current which is the exact equivalent of the aerial impulses, we shall certainly obtain exactly similar results” This does not mean ifwe can, nor refer to it as something which then could not be; it means whenever, as often as. In September, 1875, he, while in Canada, had a talk with his father, of which the latter made the following note : -— ’ " Sunday, September 12, 1875. Telephone talk; wonderful I ” His invention of the speaking telephone is one in which the purely intellectual part, the conception of a new principle and mode of oper- ation, of a new relation of means to an _end, was the great step. With the conception once fully formed and believed in as the selli— tion of the problem, the construction became easy and sank into i11- significauce as a part of the Work of invention. The instruments might vary in construction, and Mr. Eell per- ceived at once that they would; but the statement which he was fully prepared to make involved the first announcement of a princi- 56 BRIEF FOR COMPLAINANTS ON FINAL HEARING. ple and mode of operation which must characterize every instrument capable of producing the described result. Such an invention, thoroughly conceived of and fully explained, with a description of instruments by which it could, to some extent, be availed of, with an indication of its new and impartant results, will sustain a patent, although the instruments themselves be very rude and very feeble. It reduced the problem of the Commercial transmission of speech to a mere question of mechanical improvement, and it declared the precise direction and limitations under which all these improvements must be made. It brouOtht the )robleiu from the domain of the a l originator to the domain of a mere improver. It is worth noting, also, that the improver who very speedily carried this art and the instruments for practising it up to the point of their successful com— mercial use, did actually introduce them into successful commercial use, and has supplied them in great numbers for that purpose, was the originator, Mr. Bell himself, working under this patent now in suit. The filing of his specification was delayed chiefly by his endeavors to raise the funds fO' an English patent; but the delay was not un— reasonable, nor the consequence of any doubts in his own mind. On the contrary, it was because of his belief in the value of his inven- tion. As sworn to Jan. 20, 1876, and filed Feb. 14, 1876, it con- tained nothing but what he was prepared to write in it and intended to write in it in the summer of 1875. It is impossible to read this documentary evidence without seeing that the one subject to which, more than anything else, Mr. Bell devoted his mind, was the transmission ofspeech, or, as he expressed it to Prof. Henry, “ to telegraph vocal sounds,” —-“ the transmission of the human voice by telegraph,” —— almost the exact words after— wards found in his patent. He sought for a solution of this problem ; he sought for it until he believed that he had found it; he took his patent. In his claim he stated everything that is essen— tial for the transmission of speech, and when the operation there de— scribed is performed speech will be transmitted. No part of the operation there described can be omitted and the transmission of speech attained; all that he there described is novel, and it is because now MR. BELL INVENTED THE SPEAKING TELEPHONE. 57 of the novelty there described and by means of it that speech is transmitted. It meets the strictest requirements of a perfect claim ; it proposes to attain a new result; that which in the language of the statute it “ points out and distinctly claims” is novel, sufficient for the declared purpose and in no particular unnecessary. Mr. Bell drew the claim himself; it is thus perfect and complete because his ideas were definite. precise and sufficient. Mr. Bell was equipped for this invention as no other man in the country was. It was not that his actual scientific knowledge exceeded that of many men, but his study of the phenomena of speech and his daily application of that study in teaching deaf mutes to talk had given him that familiarity, and, so to speak, handiness in the use of articulate vibrations which a good workman gets with the tools of his cratt. He realized them, so to speak, as the primary things of which his ears only noticed the result, for they were to him the means of communication with his pupils who heard no sound. He had learned to trust them in his thoughts; he had learned to rely on their strength from his constant experiments with them in the phon- autograph. He had that kind of familiarity with them which a workman has with the tools of his craft. The course of thought which led him to the speaking telephone is stated by him (complts, i, 118). He knew from the outset that his plan was mathematically per- fect, but he thought that the results of" such currents as could he gen— erated by the voice would be too feeble to be of practical utility. The more he became possessed of all that had been known and done by electricians. the more certain he felt of this. The most delicate magneto generator known was the Siemens key, which re— quired the full force of the operator’s wrist to work it, and he pro— posed to work a magneto machine by the smallest waves produced by the voice. The most delicate detecterof currents known was the galvanometer, and he proposed to depend for his results entirely upon currents which no galvanometer can detect the existence of. It appeared to him that the difliculty was to be surmounted not by empirical experiment but by thought and study. That was the way he had made the invention. At his visit to Prof. Henry in March, 1875, he stated his plans, his ideas, and the supposed difficulties 58 BRIEF FOR COMPLAINANTS ON FINAL HEARING. which then made the plan seem impracticable. To Prof. Henry the plan did seem impracticable but not ehimerical, and between those two is the line which separates the abandonment of a thing be— cause it is believed to be impossible from the earnest prosecution of a thing which is only difficult. He asked Prof. Henry whether he should publish his plans and leave the attainment of results to those equipped with better electrical knowledge, saying that he had not the electrical knowle lge necessary. Prof'. Henry’s laconic answer was “ Get it”; for he believed that the surest and quickest road to success in that case was for Mr. Bell to do just what he was doing,—s’tudying and thinking. Will this Court un— dertake to say now, after the event, that the judgment which Mr. Bell formed, and which Prof. Henry then formed, was a foolish one, when this Court now knows that what the one advised and the other acted upon did within a year carry Mr. Bell’s completed specifica- tion for a speaking telephone to the Patent Office? He would be a bold man who should say that following the enurse which Prof. Henry advised, and which so quickly led to success, was unwise in itself or showed an intention to abandon the project. 011 the 2d of June, 1675, Mr. Bell, experimenting with his har- monic instruments, accidentally set one into sonorous Vibrations by the tap of the hand. He heard a noise proceeding from the other in— strument. The full bearing of this, — what to most men would have been an unnoticed accident, ——flashed upon his mind. He repeated it until he had satisfied himself that the sound which he heard at the one instrument was due to magneto currents generated, under ex— tremely unfavorable circumstances, by the souorons vibrations of the other. He instantly, within an hour, gave orders for the construction of exactly such a telephone instrument as in the preceding fall he had described to Dr. Blake. It is impossible to find higher proof that his plan and his conception were matured and definite, and were the always present subject of his thought and endeavor. The results which he obtained that summer on his instruments were, to the general public, absolutely insignificant; but they satis- fied him that speech could be transmitted; and it can be. His letter of Aug. 14, 1875, quoted p. 54, supra, shows that he appreciated that he had made a discovery which solved all the difficulties. HOW Mn. BELL INVENTED THE SPEAKING TELEPHONE, 59 lVe now know why he did not get speech through these instruments. It was due to the accidents of" his surroundings, and the place where he tried them (see p. 53, supra). Throughout the year preceding the midsummer of 1875, he had had serious diflicnlties to contend with. He had absolutely no means of support except his teaching, and to prosecute that at all required all his days, leaving nights only for study and experiment. He had not the enormous advantage which Drawbaugh had of per— . Sonal skill as a workman, with tools and machinery at command. He was also engaged upon the harmonic telegraph which he had been at work on for seine time, and he had got so far along with that, that in the fall of 1874 Mr. Hubbard and Mr. Sanders agreed to pay the actual outlay for completing it, though they paid him nothing for his time. So he could not give up teachinU. In the very beginning of 1875 he found that he was to be involved in an interference with Mr. Gray on the harmonic system. This, added to his other work, and worry, broke him down, and, rather than give up electrical work, he broke off and postponed all his CIaSses at the risk of never bringing them together again. Indeed, he was re— duced to such straits that he had to live on money borrowed from a friend, on the faith of his next year’s tuition tees (x-ans. 344, 522, complts, ii, 1601—6, 1664). But the very letter which announced his determination to his father mentioned (March 18, 1875, p. 45, supra) the speaking telephone in terms which shoWed how large a portion of his crowded thoughts it occupied. His letters and his conduct show that he was exerting himself to the very limits of physical exhaustion, and that the speaking tele- phone always was present in his thoughts as a subject of endeavor. In July and August, 1875, when the invention w: s ready to patent, his assistant, Mr. \Vatson, became sick, and he himself fairly broke down. He went to Canada to his father’s on a visit to restore his health by rest, but while there one of his chief purposes was 10 interest some Canadian in his inventions sufficiently to advance money to take out patents in England. He finally found Mr. George Brown, who promised, if, upon further examination, the inventions were considered by him as good as they seemed to be at first sight, that he would take out patents in England. Mr. Bell immediately «v» —« 5"p‘zAV.” 60 BRIEF FOR COMPLAINANTS ON FINAL HEARING. proceeded to draw specifications for five patents, one of which was the patent now in suit, and 'he occupied the month of October and into November, 1875 in doing this. Meantime, he did not hear from Mr. Brown, as he expected. He completed the specification for the patent now in suit, gave it to Mr. Hubbard, who took it to \Vashiug- ton, Dec. 9, 1875, but for some reason or other came home at - Christmas or New Year’s having done nothing about it. At the be- ginning of January, he took it back again, showed it to the patent so- licitor, who changed only a few words, and the fair copy was sworn to Jan. 21, 1876. In the mean time, Mr. George Brown had been found, the specifications given to him, and he had taken them to England. The agreement was that the American specifications should not be filed until Mr. Brown had had an opportunity to tile in Eng— land and advise of that by cable; and so they waited, but, hearing nothing, finally became impatient, and 011 the 14th of February, 1876, filed the specification. The facts which come out of this are, that Mr. Bell, exerting him— self to the utmost, taking up«no new project, giving up temporarily even his only means of support for the sake of prosecuting his elec— trical work, did, in eighteen months, pass from nothing to a com- pleted specification filed in the Patent Office. No man can say that there is any lack of diligence where one, in so short a time, passed over so vast a distance. It is easy now to criticise each step, and say that he might have done differently, and might have got along quicker if he had done differently; but the fact is, that he made this great invention and brought it to the Patent Office in a short time; and the fact is, that he did this by following out the course, which seemed best to him at the time, which Prof. Henry advised, and which the result justified; that be adhered to this project iii the face of difficulties and anxieties of all kinds which would have made him dismiss it from his mind for mere relief, if he had not been possessed by it. His letters, his disclosures to others, his conversation with Prof. Henry, which Prof. Henry did not live to testify to, but which is fairly well shown by Mr. Bell’s contemporaneous letters, and, more than all, the way in which he instantly turned to account for the speaking telephone an accident which all other men would have passed by unnoticed, bring him within the strictest rules of diligence IIO‘V MR. BELL INVENTED THE SPEAKING TELEPHONE. 61 and persistent endeavor leading to success within a moderate time. And the delay in tiling the specification i—for if he had had his own way he would have filed it the previous October or November —- was due to the fact that, being without means, he had to wait on the movements and the unexpected delays of those who were to assist him. Really, he actually sent his specification to Washington at the beginning of December. The speaking telephone part of the specification, is as follows :— Fig 7. ” One of them was in which the armature c, Fig. 5, may be set in vibration, has been stated above to be by wind. Another mode is shown in Fig. 7, whereby motion can be imparted to the armature by the human VniCe, or by means of a musical instrument. " The armature c, Fig. 7, is fastened loosely by one extremity of the uncovered leg I] of the electro-magnet b, and its other extremity is attached to the centre of a stretched membrane a. A cone A is used to converge sound vibrations upon the membrane. \Vhen a sound is uttered in the cone, the membrane a is set in vibration, the armature c is towed to partake of the motion, and thus electrical undulations are created upon the circuit E b c f 9. These un- dulations are similar in form to the air vibrations caused by the sound; that is, they are represented graphically by similar curves. The undulatory current passing through the electro magnetfinflu- ences its armature It to copy the motion of the armature c. A similar sound to that uttered into A is then heard to proceed from L.” The fifth claim employs the language of this paragraph, and is based upon it. Its language is not found in the parts of the specifi- 62 BRIEF FOR COMPLAINANTS ON FINAL HEARING. cation which refer to Fig. 5, and it could not be sustained upon those parts. It is as follows:— “ 5. The method of and apparatus for t ‘ansmitting vocal or other sounds telegraphieally, as herein described, by causingr electrical undulations similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth.” Mr. Justice GRAY has stated the substance and meaning of the patent in the opinion already quoted, p. 33, supra. Prof. Cross has well stated it from the scientific point of View (complts, ii, 1707), as follows : —- "A. 3. The speaking telephone is shown in Fig. 7 of the patent. In the body of the specification. and in the claim, the patentee describes the nature of the operation which will take place when a sound is uttered into the transmitter by the human voice. I know, as a matter of scientific knowledge, that, when spoken to, this is the kind of operation which it theoretically will perform, and the only kind of operation which it‘ theoretically can perform. " The patentee then asserts the consequence of that operation with that. apparatus to be that a similar sound to that uttered into the trans- mitter is then heard to proceed from the receiver. This action is theoretically the necessary consequence of this operation of the ap- paratus. I know from actual trial that this operation would be so well performed by a set of instruments constructed according to the instructions of the patent, and without further invention) But the listener at the iecciving end will recognize and understand words spoken at the transmitting end. ” That feature to which the most prominence is given in the spe- cification is the similarity of form between the sound Vibrations which actuate the instrument and the electrical undulations due to thcm. This is expressly mentioned in the following sentences of the specifications: ”these undulations are similar in form to the air vibrations caused by the sound; that is, they are representedgraphi- cally by similar curves.’ " This is the only feature specifically mentioned in the claim, which reads as follows: ‘5. The method of and apparatus for transmitting vocal or other sounds telegraphically, as herein de- e1ibed, by causing electrical undulations similar in form to the vibra- tions of the air accompanying the said vocal or other sounds, sub- stantially as set lorth.’ “ This secures the transmission of quality. It has no purpose, function or elfeet, except the transmiSsion of quality, which includes HOW MR. BELL INVENTED THE SPEAKING TELEPHONE. 63 articulate speech. This correspondence of form is the essential elec- trical novelty which distinguishes this apparatus from all others known to the community before it.” There is no controversy between these parties touching the nature of the operations by which electricity transmits speech. The experts on both sides agree that nothing will do it except the elec- trical undulations similar in form to the sound waves, as specified in Mr. Bell’s claim (app. p. 264). The real contest here is whether this precise thing was invented by Bell or by Drawbaugh. Following up that patent, be instantly introduced his speaking telephone into commercial use, not indeed by employing a Chinese copy of the drawing, but by making, from day to day, improve- ments. Every improved instrument, however, embodied the mode of operation and principle described in his patent, and transmitted speech because it embodied it. The improvements did not change the principle or mode of operation even of any subordinate part; they did not even change the arrangement of the subordinate parts inter .96; they consisted in replacing each subordinate part by some- thing which performed precisely the same operation in the same way, but by reason of its better workmanship, or better materials, or better proportions, performed it more eflicieutly. He furnished the speaking telephone to the community; there is nothing in this record tending to show that the efforts of any claimant contributed t.) placing that instrument in the possession of the public, nor that the poSsession of it by the public Would have been delayed a single day if no contestant had existed. On ‘the contrary, the express aimission of the answer is that telephones have gone into public use " not from nor by reason of any information derived from or through said Drawbaugh, but by an independent invention or inde- pendent inventions thereof by others”; and, again, that such use has been " by reason of knowledgeéand information of their construc- tion and operation not derived from or through said Drawbaugh.” We have stated briefly (p. 35, supra) the history of this inven- tion after the patent. Mr. Bell immediately went to work to con— struct instruments and invent improvements. He made some liquid transmitters of the type pointed out in the patent, which differs con- siderably from the liquid transmitters that have been from time to 64 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. time devised by others. They are described and shown in his depo- sition (complts, ii, 1686) and in hIr. Watson’s (cornplts, i, 313). The liquid transmitter exhibited at the Centennial contains for its electrical parts a rod of carbon if attached to the diaphragm D, dipping very slightly into mercury or acidu- lated water contained in a metal cup 0. As the diaphragm, spoken to, vibrates, the rod dips more or less deeply, and this produces the variation. It is obvious that the length of fluid which the current passes through does not. materially vaiy; the difference is produced in the resistance experienced in the passage of the current from the rod to the fluid, at the place of contact; the area of this contact, normally small, varies ma- terially as the wire or rod plunges more or less deeply; the larger the area of contact the less the current is enfeebled in paSsing. One of his earliest instruments of this type was made when the patent was about a week old, and Mr. Watson, who made it, gives the following sketch (complts, i, 313) :— A is the membrane diaphragm, carrying the red C, to which the current passes by the wire shown from H. The current then passes PROGRESS OF MR. BELL’S I’ATENTED TELEPHONE. 65 through the liquid, which is at the line J, to the metal rod G, to which the other conducting wire is fastened. This metal rod is here used because the vessel is of glass, a non-conductor. In Gray’s form the vessel is of glass, and a conductor enters the bottom. The wire attached to the diaphragm penetrates the liquid, and almost touches the bottom conductor; its vibrations vary mate— rially the distance between them, and thus the length of liquid (3. very bad conductor) which the current has to pass through. Mr. Bell exhibited at the Centennial, and obtained an award, and was mentioned in the highest terms in the two reports, drawn by the two men of the world best qualified, — Prof. Henry and Sir William Thomson. These reports, and the whole history of the reception of this invention by the world, are shown in complts, i. 230—292. They are important because they make certain, what, indeed, no one could doubt, that the presentation of this invention, even with its early and feeble apparatus, instantly arrested universal attention, aroused universal curiosity, and excited universal desire: These two reports also (complts, i, 234—6) show how highly intellectual a kind of in- vention and how far removed from common reach it was. Mr. Bell used his telephone before the judges and seventy-five people; but the men of men among them were Prof. Henry and Sir William Thomson, the one the father of the telegraph and of the whole apparatus, the other the greatest living electrician and mathematician in Europe, —men who knew everything that had been known on the subject} and after he’had finished and gone away, they took it to their pavilion and, by themselves, tried it, the next week.‘ What they had to say about it they said in the formal utterance of an offi- cial report, sent out to the world as their maturest judgment, after calm reflection, and repeated by Sir ‘William Thomsdn in an address, Aug. 25, 1876, to the British Association, as chairman of the section of physical science. Prof. Henry said (complts. i, 235) :— " The telephone of Mr. Bell aims at a still more remarkable re- sult, — that of transmitting audible speech through long telegraphic lines.” Then, describing the operation and the apparatus, he adds:— 66 BRIEF FOR COMPLAINANTS ON FINAL HEARING. "This telephone was exhibited in operation at the Centennial ex- hibition, and was considered by the judges the greatest marvel hitherto achieved by the telegraph,”-—tne telegraph, Prof. Henry’s own child. Sir William Thomson said (complts, i, 237) :— "I need scarcely say I was astonished and delighted; so were others, including some of the judges of our group, who verified with their own ears the electric transmission of speech, having witnessed the experiment. This, perhaps the greatest marvel hitherto achieved by the electric telegraph, has been obtained by appliances homespun, and of a rudimentary nature. With a somewhat more advanced plan, and a more powerful apparatus, we may confidently expect, that Mr. Bell will give us the means of making the Voice heard, and spoken words audible, through an electric wire, to the ear, one hun- dred miles away.” In again describing it to the British Association, Sir William Thom- son said (eomplts, i, 240) : " Who can but admire the hardihood of invention which devises such very slight means to realize ”—-what? “ the mathematical conception, that if electricity is to convey all the delicacies of quality which distinguish articulate speech, the strength of a current must vary continuously and as nearly as may be in simple proportion to the velocity of the particle of air engaged in constituting the sounds.” That was the hardihood of invention, that was the conception, that that current was made to correspond with the movement of the particles of air that constitute the sound, which those men called marvellous. IIostz'le criticisms 0n Jilin Bell’s Patent. The Instruments of the Patent will talk—In the Dowd case Mr. Edward Renwick produced a pair of telephones which he said were made in exact accordance with the patent, and which he said Would not talk. In reply we produce a large number of pairs made by difl'erent workmen, in several different shops, and they did talk. One pair was an exact copy of Mr. Renwick’s, except. that the mem- branes were stretched in the proper and usual way; another set was made of a pair of string telephones, bought at random in the street, with magnets added to them. (See complts, i, 212, 224, 338—9, 350 ; ii, p. 1722.) In Spencer’s case all this proof was laid before the HOSTILE CRITICISM 0N MR. BELL’s PATENT. 67 Court, and with it also the testimony of Professor Morton, that he had been furnished by his clients with a pair which would not talk. But the Court decided that " the instruments will talk, and in the way pointed out by the patent.” Mr. Benjamin, the defendants’ expert, has also produced a pair which he says will not talk. But wepointed out that he had been guilty of a clumsiness in their construction which no electrical workmen of reputable skill would fall into, and which was enough to prevent them from talking. His armatures were put out of reach of the magnets. We made a pair just like them except in this re- spect, and they talked (complts, ii, Mr. Pope, pp. 1296—1301; Mr. Cross, p. 1722—5). This is fully examined and the quotations and details given in the appendix, pp. 270-277. Mr. Benjamin knew perfectly well of this defect. He did not employ an electrical workman to make them, and he ought to have known that no respect- able workman would have produced such a pair of instruments. He did it purposely; he pretends that the drawing of the patent amounted to a specific direction as to how far from the magnet the armature should be placed, and that the patent showed no adjust- ing screw for adjusting the distance; thereupon he enlarged the scale and put the armature twice as far off. Whereupon we proved that the proper distance was of elementary knowledge with every electrical workman; that an adjusting screw to regulate the distance between armature and magnet is a contrivance used in all electrical apparatus, and which electrical workmen always apply whenever it is likely to be convenient; that, however, though used at the very first, no magneto telephone now in use has it ; that instruments made ‘ as Chinese copies of Fig. 7 of the patents, and without it, Wlll talk; we made such instruments and talked with them in the presence of the defence (exhibits, 55—6, app. 505) ; even Benjamin’s instruments do not need serews. (See particularly Mr. Pope, complts, ii, 1298, ans. 17, p. 1299; x 408, p. 1453‘; ans. 424, p. 1457 ; Prof. Cross, ib. 1723.) The instrument I, which Drawbaugh alleges was among his best receivers, never had an adjusting screw. We also proved that if modern commercial instruments had the armature and magnet sep- arated as Mr. Benjamin separated his, they would be practically worthless. ' 68 BRIEF FOR COMPLAINANTS ON FINAL HEARING. We also introduced eight instruments, four of the form of Mr. Bell’s instruments of 1875, and four of the exact shape of the draw- ing of the patent, and they transmitted newspaper paragraphs in the presence of Drawbangh’s counsel and expert (1%., vol. ii, pp. 1708— 1720; also p 1296). The details of these tests are fully rehearsed and the evidence about them quoted in appendix, pp. 504—514. In the Dowd case. Mr. F. L. Pope, an electrician of long and varied experience, and the author of the most widely used telegraph manual published, was electrical expert against us. After we had introduced the foregoing proof, he, for his own satisfaction, deter- mined to try for himself whether they Would work or not. He put the Bell patent into the hands of a workman, giving him the instructions which the law calls for, viz., to follow the patent, but to make the instrument work if he possibly could. He made them, and Mr. Pope had no'dit’ficulty in talking through them (11)., Pope, ans. 5, p. 1292; ans. 335, p. 1433; PP- 1404—l1). He satisfied himself that the patent was good on that score (app. 526—7). Mr. Bell’s Patent is fir a speaking Telephone—It has been the habit of the various defendants in the various suits to attack the patent by saying that it did not purport to be for a speaking tele- phone, and it has been the habit of the courts to overule these criti- cisms. That is enough. , A professional expert has expended a large amount of time and labor in the endeavor to make the Court believe'that Mr. Bell, who spent many months trying to invent the speaking telephone, as his letters show, and who did invent the speaking telephone, as history knows, went to the Patent Office to patent his invention, and did not mean to patent the Speaking telephone, and all because he said " vocal and other sounds ” “ uttered ” “ by the human voice,” and did not say "talk.” Mr. Bell was a scientific man; he aimed at expressions scientifically comprehensive and scientifically exact; the patent on such a subject was properly addressed to scientific men, and not to stock brokers; and in the descriptive part he‘states that what will be copied is the " form ” of air vibration due to " uttered” sound. Ever since Helmholtz’s time, everybody fit to read surh a. patent knOWs that this means the cause, the consequence and the concomitant of speech. THE BELL PATENT IS FOR A SPEAKING TELEPHONE. 69 On March 28, 1878, the speaking telephone interferences were declared, and of course they all centred around this patent. There was a motion by Mr. Bell to dissolve and reform them, and upon the argument of it his opponents indulged in this same criticism. In his opinion (0. (3n, May 13, 1879, vol. 15, p. 776), the commis— sioner said : —— " Nor is the fifth claim of Bell’s patent (No. 174,465) limited to the transmiSsion of other sounds than articulate speech. For if the word ’ vocal,’ in the claim itself, could leave the question in doubt, the description in the application would remove such doubt.” From that time no court has had any trouble with the question ;, those courts include Mr. Justice Gray and Judge Lowell on three ditferent occasions, in the cases already cited. It is somewhat significant that in his attempt to construe this pat- ent and find no speaking telephone in it, Mr. Benjamin does not quote at all the paragraph which describes the speaking telephone. And in reading his deposition, many pages of which are devoted to a consideration of this patent, no one would suspect the existence of that paragraph. The instruments there described " will transmit speech and in the way pointed out ” (LOWELL, J., in Spencer’s case). It is perhaps worth While to note what the phrase " voral sounds” meant with Mr. Bell and other scientific men. All through Mr. Bell’s letters, previous to his p-itent, although he frequently used the word " speech,” he more often used the phrases " transmission of the human voice,” "transmission of vocal sounds.” And when Dr. Blake, under a mistake, wrote to Mr. Bell that Mr. Gray had been experimenting upon “ the transmission of Vocal sounds,” Mr. Bell at once understood that speech was meant, and so did Dr. Blake. When Mr. Bell wrote his father and mother of his talk with Prof. Henry, he used the phrase “transmission of the human voice by telegraph.” In writing to his father and mother again in May, 1875 (complts, i, 133), he says " the transmission of the human voice,” and he contrasts that with the transmission of musical notes. His claims, compared with those of his early drafts for the patent, partic~ ttlarly his fifth claim, wet e obviously reached by condensing, studying and striving to find words which covered the whole but did not go too far, and he hit upon the phrase “ vocal and other sounds.” It is 70 BRIEF FOR. COMPLAINANTS 0N FINAL HEARING. as comprehensive as the capacity of the speaking telephone, but not more so. It states what the speaking telephone can do, and what no instrument before the speaking telephone could do. An instru- ment which can do that is necessarily a speaking telephone; an instrument which cannot do that is not a speaking telephone. So great an authority as President Barnard of New York, one of the Centennial judges who signed Mr. Bell’s award, wrote to Mr. Bell, Aug. 10, 1876 (complts, ii, 1687), requesting him to prepare for the encyclopaedia President Barnard was then publishing an account of his invention, the purpose and capacity of which to transmit conversation President Barnard then well knew. In that letter President Barnard refers to it as “ your ingenious method of transmitting vocal sounds by telegraph,” and does not think it necessary to say “ speech” in terms. In some correspondence which Mr. Bell had with Mr. Gray touching the speaking telephone, in February, 1877, Mr. Gray spoke of it as "your method of transmitting vocal sounds ” (complts, ii, 1625). In another letter, some two weeks later (complts, ii, 1627), Mr. Gray again used the phrase, " transmit vocal sounds,’ as a description of the speaking telephone. The decision of the Patent Office, already quoted, states in terms that that language and the other language of the specification is abundantly sufficient to show that what was meant was a speaking telephonic. I THE DRA‘VBAUGH CASE. THE DRA‘VBAUGH CASE. Drawbaagh’s First Appearance to the Paula—In the summer of 1880, Mr. Bell’s telephones had been in use for more than three years, and over a hundred thousand of them were then actually em- ployed. Drawbaugh had then never been heard of, by the public at least, as a claimant of the speaking telephone (Bill, 13). There then appeared in the Oinctnnatl Commercial of July 22, 1880, the following notice (the italics are ours; Bill, complts, i, p. 13) : — “TELEPHONE COMBINATION.” {" Special to Ci7tc€nnatt Commercial."] “WASHINGTON, D. 0., July 21.-——An application for a patent was filed to-day, that in consequence of its vastness of interest, as well as wealth of prospect, renders it a subject of national interest. A company of leading business men has been formed that has bought up all the telephone patents antedating those now in use, and known as the Bell, Gray and Edison patents. The company is composed of leading business men from all parts of the country, Cincinnati being largely represented and interested. The cash capital of the company is $5,000,000, with headquarters in New York, and in about sixty days they will open up the telephone, which will cer- tainly result in the driving out of all telephones in the market. save the ones they hold, or else the compelling the Gray, Bell, and Edison lines to pay the new company a munificent royalty. It appears from the testimony now on file and in the possession of the new com- pany, which is conclusive and exhaustive, that the inventor of the telephone is a poor mechanic, living near Harrisburg, Pa., named Daniel Drawbaugh. Owing to his poverty, he was unable to push his patent on the market. The new company have secured and are sole possessors of this invention, antedating those now in use. They are also owners of four patents for telephones issued to Mr. Klemm, of New York. A large number of capitalists were here tO—day to see the filing of the application, and they assert, with a positiveness which is almost convincing, that it will not be long till they have entire charge of the telephones, not only in this country but in the world, and that they will be able to establish lines by Which messages can be transmitted for almost a song.” " Mr. Lipman Levy, of the law firm Of Monlton, Johnson & Levy, of Cincinnati, was here' to-day in the interest of the Cincin- nati parties, who as already stated, are among the most prominent financial men of our city.” 72 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Drawbaugfi Sued and Enjoz‘ned.—Immediately the Bell Company made suit-able inquiries, collected evidence bearing uponDraw- baugh’s history, and, October, 1880, filed a bill against the People’s Telephone Company, assignee of Drawbaugh’s alleged claims, Drawbaugh himself, and, others. In that bill we alleged that certain of the defendants associated themselves together, with the intention to make speaking telephones according to cer- tain improvements patented to Klemm and Tisdel; that they then became aware that they could not make those instruments without infringing the Bell patent, and thereupon, searching for a defence, they heard of Drawbaugh, and entered into an arrangement with him to set up and claim that he was the first inventor of the speak— ing telephone, and to make application for a patent therefor, and afterwards caused him to file an application for a patent for the speaking telephone, as the first inventor thereof, in the Patent Office. That was an assertion that Drawbaugh was sought for, not because it was supposed he could furnish a telephone, but because it was hoped he could supply a defence. One of the principal defendants has confessed this on the witness—stand (Chellis, defts, i, 559; app. 165). The bill further alleged that the pretences that Drawbaugh was the first inventor were false and unfounded. In 1878, one of the principal defendants, E. W. Chellis, of Har- risburg, and Dr. Moffitt, of Harrisburg, one of the most conspicuous witnesses to alleged early use, then about to become partners of Drawbaugh upon an improved molasses spigot which he wished to patent, considered whether there was anything in Drawbaugh’s tele- phone work (he was theu engaged in trying to invent some impr 've- ments in telephones) which was worth taking up, and Chellis talked with Drawbaugh about it. The value of the telephone was then well known. But they concluded that the molasses faucet was the best thing to venture their money upon, because Mr. Bell had a patent, and Drawbaugh " would have a hard time to establish priority of invention.” That was the judgment of Dr. Mollitt, who had been familiar with Drawbaugh’s inventions for more than ten years. In the summer of 1879, the telephone had grown still more profit- able; Chellis again considered the matter with Mr. Hill and Mr. Jacobs, then his counsel about the molasses faucet, but concluded to do nothing. THE DRAWBAUGH CASE. 73 In 1880 the other principal defendants, Marcus Marx, Moritz Loth, Simon Wolf and F. A. Klemm, started to make telephones. They were advised that any instruments they were about to make Would infringe the Bell patent. They had, however, the same faith in a " prior inventor ” that the elder Mr. Weller had in an alibi, — and perhaps as good judgment in the matter. The Western Union suit had just disposed of one lot of " prior inventors,” and these new men were now in the market for another. Then it came to pass that in May, 1880, Chellis, and his two former counsel in the faucet inat- ter, Messrs. Hill and Jacobs, got from Drawbaugh three fourths of his pretensions for nothing. Instantly negotiations began, which quickly resulted in a transfer of them to Moritz Loth, Simon Wolf, Marcus Marx and F. A. Klemm for $20,000 in money and an un- known amount of stock, three fourths of all which, of course, remained on the way before Drawbaugh was reached. Then fol- lowed an application for a patent, heralded in the newspapers, and a corporation of $5,000,000 share capital. History repeats itself. In Roberts v. Reed Torpedo Company, 3 Fish. 630, GRIER, J., said : —— “ He applied, on the 1st of November, 1865, for a patent for sub- stantially the same combination of devices for machines contained in complainant’s patents. “On the 15th of the same month, the respondents formed them- selves into a company or corporation, called ‘The Reed Torpedo Company,’ for the purpose of pirating the complainant’s invention, and supporting the expense of litigation, and thus defrauding him of its fruits.” Then came this suit, in which Messrs. Hill and Jacobs are the re- sponsible and active counsel who have prepared the defence. The evidence about this is collected on p. 234. This bill was accompanied by a motion for a preliminary injunc- tion, which was supported by considerable testimony relating to the history of Drawbaugh. 'VVhen this motion came on to be heard, the defendants had in their pockets fifty or a hundred affidavits from their present Witnesses. If they could be believed, they had a defence to the motion. They did not dare to present them. They took the ground that they had not made telephones nor threatened to make any; that they were 74 BRIEF FOR COMPLAINANTS ON FINAL HEARING. pursuing simply the peaceful and lawful course of presenting an ap- plication to the Patent Office, and in endeavoring by a decision ofthe Office and by advice from their own counsel, which they had appar- ently vainly spent three months in attempting to obtain, to know whether they could make telephones of any kind without infringing the valid claims of any patent; and that the course of the Bell Com- pany in undertaking to restrain a corporation which had formed itself with a capital of $5,000,000 merely to obtain an opinion of counsel, was calculated to embarrass them. They filed affidavits in which their principal officers swore to these assertions. It turns out now, by the statements contained in a leading question put by Mr. Hill, one of the parties in interest, and counsel, and assented to by Chellis, director of the defendant company. that these men, Marcus Marx, Moritz Loth, F. A. Klemm and Simon Wolf, had determinedtoin- fringe, and bought upthe Drawbaugh pretensions, not for the pur- pose of using his telephones, but merely in order to procure his testimony. Those parties, therefore, came into being upon the mere assignment of a speculation ; they came before this Court with a defence to that injunction which was in itself a falsehood, and which confessed that their fifty or a hundred affidavits were not worth pre- senting to the Court. Brief Statement of the Drawbaug/L Case. Mr. Bell has two patents : . No. 174,465, of March 7, 1876, for (a) The method described. (6) The apparatus as a whole operating to transmit speech by the described method. No. 186,787, of Jan. 30, 1877, for certain improvements in con- struction. The assertion of the defendants is that the claimant Daniel Draw- bnugh had invented, constructed and used all that is disclosed by Mr. Bell’s two patents before Mr. Bell invented anything on the subject; that he actually constructed an instrument in 1864—5. It is worth while, first to clear this case from some of the false color which has been thrown around it. BRIEF STATEMENT OF THE DRAWBAUGH CASE. 75 Drawbaugh was a professional inventor and patentee. Between 1852 and 1878 he took out twelve patents. He made a considerable number of inventions, and always found means to obtain patents and introduce into use such of his inventions as were worth anythinU. That implies that he had friends of means, disposed to take interest in patents, and at the time when this inquiry opens Gov. Geary, of Pennsylvania, was his partner in one patent enterprise (v. p. 239 inf/a). Among his friends from 1870 to 1876 to whom he showed various electrical contrivances, but never a telephone, were Mr. Andrew Keifer, superintendent of lelegraphs for the Pennsylvania Railroad, at Harrisburg, and partner in an electrical manufacturing establishment, and Mr. Simon Cameron Wilson, now mayor of Harrisburg, and then superintendent of telegraphs for the Northern Central Railway, at Harrisburg. He exhibited at the State fairs at the expense of his partners. He was known as an ingenious con- structor, and was sought for that purpose. He had the free use of a power—driven machine shop fitted up by his partners, and was him- self a skilful mechanic. He passed much of his time experimenting with all kinds of contrivances, and his shop was a museum of discarded models. He lived three miles from Harrisburg, in a double house which he owned, while he leased the other half and the village black— smith shop which stood on his land. He was therefore not unnoticed, not unfriended, not unknown, not Without resouices; he knew the value of a patent, the consequences of delay, and the way to the Pat- ent Ofiice, and at one time advertised himself as “Solicitor of Pat- ents,” and drew a few specifications for otherswho sought his assistance. If he invented the telephone, however, he passed far outside of the ordinary range of his mental scope, for the other inventions, of which he has given us a long list, are mere mechanical contrivanees and improvements, ——- imprchments in barrel machinery, in jig saws, in contrivances for carrying or levelling mill stones, in nail-plate feed- ers, in carpet-rag loopers, in hydraulic rams, in measuring faucets, and in sundry electrical contrivances, all of which, either with or without his improvements, were old and never of any considerable value. He had shown himself an ingenious man, but never a man of genius. 76 BRIEF FOR COMPLAINANTS ON FINAL HEARING. T/Le Drawbaugh Story as told in tile Answer. —-—His story about the telephone is told in the defendants’ answer. It is, that he constructed practical working speaking telephones before 1870; that afterwards, and before 1876, he made important improvements; that N “his invention was disclosed to a great many persons, and " freely communicated to the public.” The answer says that before Mr. Bell’s invention (par. 11), -— " Said Daniel Drawbaugh, then and now residing at said Eberly’s Mills, constructed and operated practical working electric speaking telephones at said Eberly’s Mills, and exhibited their successful operation to a great number of other persons resident in his vicinity and elsewhere.” “That some of the original machines . . . are still in existence, anl capable of successful practical use, and are identified by a large number of persons who personally tested and used, and knew of their practical operation and use, in the years 1870, 1871, 1872, 1873, 1874, and both subsequently and prior thereto; that certainly more than fifty, and probably not less than one hundred persons, or even more, were cognizant of said Drawbaugh’s invention and use of said telephones ” bet'ore Bell’s invention. Par. 12, p. 8: “ That the said Daniel Drawbaugh, after making, testing, using, and extensively exhibiting his invention to others, and allowing them experimentally to personally test and ascertain its successful practical operation and utility, as aforesaid, and after the full and repeated demonstration ofits successful working, as afore- said, conceived that its range and capacity of usefulness to the public might be very greatly enlarged,” and thereupon made addi- tional improvements to “increase its value to himself, and to the public.” Par. 15, p. 10: “That said Drawbaugh’s original invention was complete, successful, operative, and practically and successfully op- erated, and reduced to practice as a ‘speaking telephone ’ on many occasions in the presence and hearing of many other persons, and knowledge thereof was freely communicated to the public by said Drawbaugh ; and that said Drawliaugh’s improvements, additional to his said original invention, were complete, successful and practical inventions; that all of his said inventions were fully reduced to practice and communicated to others.” “7e shall never know the exact truth of all that took place in Drawbaugh’s shop. Time Will not allow even the discuSSion of any more questions than the law puts. What is needed to constitute a " prior invention” was defined by Judge SPRAGUE in the Howe THE DRAWBAUGH STORY AS ALLEGED. 77 ‘Sewing Machine case (Howe v. Underwood), 1 Fish. 162 (1854), as follows :— "The terms 'being an experiment’ and “ending in experiment’ are used in contradistinction of the term ‘ being of practical utility.’ Until of practical utility the public attention is not called to the invention; it does not give to the public that which the public lays hold of as beneficial.” So startling an invention as the speaking telephone, which had reached the point required to make a defence, would be laid hold of as beneficial ; and when " freely communicated to the public,” printer’s ink would furnish imperishable proof of it. The knowledge of it would not depend on the faltering recollections of ignorant men. If . the story is true, it will furnish proof for itself that cannot even be discussed. But here we come upon the positive fact, admitted by the answer, that his instruments were never applied to any useful purpose, but only used from time to time " experimentally,” and in his own shop; that he never offered them for practical use; that no one of the public to whom be communicated what he had done and who exper— imentally used his apparatus ever sought one for use; that neither from him nor his instruments did the community, in fact, learn how to transmit speech or acquire instruments for that purpose; and that all the telephones and all the knowledge the public have, have been obtained, not from Drawbaugh, but from Bell and his success- ors; and that Drawbaugh filed neither caveat nor application until July 23, 1880. The answer says that all the instruments evei'put into use in the world before 1880 (outside of Drawbaugh’s experimental use of eight or ten instruments) — " Were not the specific machines and instruments invented by said Drawhaugh as aforesaid, but were machines and instruments invented by others, subsequently to the original and first invention of the elec— tric speaking telephone by said Drawbaugh, and subsequently to the invention of his saidimprovements thereon, as aforesaid ; and that as this defendant is informed and believes, such machines and instru— ments were so put on sale and into public use, not from or by reason of any information derived from or through said Drawbaugh, but by an independent invention or independent inventions thereof by others.” 78 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. We start upon the inquiry formulated by Judge Sprague, with the fact, that although, if the allegations of the answer be true, all that the claimant knew— " his invention” —Was freely communicated to the public, yet the public never got a speaking telephone out of it. Cansidering the nature of the invention, and how the public did lay hold of what Mr. Bell communicated, no recollections can be so strong proof in Drawbaugh’s favor as this fact is against him. “ The greater the importance of the invention, the less probable that, if achieved, it would have been laid aside and not extended it- self to others interested in its use.” SPRAGUE, J., in Hayden v. Suflclk h’Ianufacturing Company, 4 Fish. 93 (1862). The story about the telephone is that in the fall of 1864 the claimant “ had it invented and the plans made, but he was going to make the machine," and made and showed a drawing of it to many who did not understand it at all (Lory, defts, i, 236) ; that the claimant made suc- cessful telephones before 1867, and filed his first papers in the Patent Office, July 23, 1880 (Drawbaugh’s deposition, defts, ii, 856—7). Bell then had over 100,000 instruments in use. They had been in use more than three years. The Harrisburg and other papers were full of these facts (complts, iv, 410—428). In May, 1878, more than two years before his application, Drawbaugh had carried one of his own instruments, “A,” to the telephone office in Harrisburg, and there borrowed and taken to his shop a commercial telephone, and never hinted that he was the original inventor or had surpassed it years before. (Deposition of Zeigler, eomplts, ii, 1025, 1031; Joseph VVcrt, ib. 1177, not contradicted; Drawbaugh, defts, ii, 1047—51.) The originators of the present enterprise— Messrs. Chellis, Hill and Jacobs —cxamined his claims in the summer of 1879, and de- liberately determined to do nothing. They did nothing until in May, 1880, they got three quarters of Drawbaugh’s pretensions for nothing, and sold to intringerS, for a price, the right to threaten the Bell Company with them (v. p. 234, infra). Meanwhile the use of telephones had become enormous, and money was invested in them every day. These facts constitute an abandonment and estoppel so clear that no question of motive or excuse can be considered. They raise ALLEGED APPRECIATION or VALUE. 79 equities of the greatest weight against destroying the cotnplainants’ properly or transferring it to another. But we do not put this on the more ground of abandonment or estoppel against the parties. Proof of these facts is direct and positive proof of the highest character for a court, which will not “ disregard the ordinary rules that govern human conduct,” that he did not have a patentable, practical or usable invention. These facts, absolutely established by his own admissions on the witness- stand or by record evidence, are indisputable proof of far greater positive Weight than any depositions of mere recollection. The defendants knew that an answer would not state a defence unless it undertook to reconcile these known facts with the asserted claim; and so it alleges (p. 7, par. 11) : —- " That said Drawbraugh,f0r more than ten years prior to the year 1880, was miserably poor, in debt, with a large and helpless family dependent upon his daily labor for support, and was, from such cause alone, utterly unable to patent his said invention, or caveat it, or manufacture and introduce it upon the market.” " And that, notwithstanding his embarrassed and impoverished pecuniary condition, and his utter want of proper mechanical tools, materials and appliances to conduct such work, he labored With all reasonable diligence to perfect and adapt his said improvements, and did finally, in due exercise of such reasonable diligence, perfect and adapt the same.” V The answer tells why no one used telephones : — " Said other persons having.r knowledge of his legal and equitable right in and to his said inventions, and respecting and acquiescing in the same, desisted and refrained from making and using his said inventions,” etc. If one could with a sober face proffer this excuse, which no wit— ness even attempts to support, it would not even verbally account for the fact that no person ever asked for one, and he never asked. any one to take an instrument. No other excuse is offered. There is no suggestion of any failure to appreciate that sucl an invention is of great utility and money value. Their proofs are specifically the other way, as follows. The defendants’ witnesses state the following, and allege that the conversations with Drawbaugh were at the dates stated :— 80 BRIEF FOR COMPLAINANTS ON FINAL HEARING. No. 1. A. B. Shank, defts, i, 25 (1875?). —“ Well, he said a. good bit about it. Had an argument on it. Yes, sir; he said it was the greatest invention ever was known ” (ans. 45). No. 3. John J. Zacharias, defts. i, 52 (some time between fall of 1868 and spring of 187(5). ——" He said he could run it out for miles and parties could talk in at the one end and he heard at the other end the same as persons in a room together.” "He said it; would eventually take the place of telegraphs.” “ He told me that he hadn’t the means, but that as soon as he ever got the means, he was going to have it patented” (ans. 28, 29, 30). No. 6. Dc’miez W. Smith, defts, i, 71 (fall of 1874). _<= He told me he was working at an instrument. to convey the voice to supply the place of the telegraph ” (ans. 16). No. 12. Christian Eberly, defts, i, 120 (soon after April, 1867). —” He said it would come cheaper than the telegraph” (ans. 17). No. 13. John ill. Waggoner, defts, i, 131 (fall of 1874). — "He also said if he got apatent on it, it would he the first patent on a talking machine, maybe, in the world, or probably in the world. I think it was probably in the world ” (ans. 30). No. 15. George Freese, det‘ts, i, 139, 140 (1870 5’). —“Says he, ' George, my fortune lies in this, but I am most too poor’; says he, ‘Unless I have friends to stick to me.’ I then asked him; I then . told him, ‘ It" 1 had the head you have, and had the article you say you have got here, and was as confident as you are what this will be, it will he a great thing. This will beat the telegraph ’ ” (ans. 6). N0. 24. Henry 0. Springer, defts, i, 195 (between April, 1876, and January, 1877). — "He said it wbuld he a fortune to him and make him independent.” “He said it would far exceed telegraph— ing” (ans. 48—9). No. 2:3. Daniel Balsey, defts, i, 202 (1872, or a little before or after).——“Drawhaugh said, ‘Uncle Dan, I am working at some— thing now; if I can accomplish it, it will be worth thousands to me,’ and then he produced a tin can. He said that if he had some person to help him they could make a nice thing of it very soon. He asked his best friends, he said, and they all refused him” (ans. 15, 16). No. 28. Jacob E. Sizettel, det'ts, i, 216 (time about 1872). — " He also said it would he better than telegraphing, and that it would be worth a great deal of money ” (ans. 4). No. 32.}0/471 Weber, defts, i. 256 (December, 1874). —“ He said, ‘1 have invented a great many machines, such as telegraph.’ Then he showed me that he could telegraph by writing on a silver paper, tin paper, and put that to the wire and it would write the same at the other end. Then he said, ‘I have a talking machine that ALLEGED APPRECIATION OF VALUE. 81 beats all the other of my inventions.’ Then he showed me some fixings for talking in. . . . I said, ‘Daniel, this is wonderfull’” (ans. 5%). No. 48, Daniel Feitrow. defts, i, 365 (1575). —“ He said this would go ahead of telegraphing ” (ans. 22). No. 40. Ephraim R. Liaising/er, defts, i, 384 (September, 1873, to November, 1875). ——”If he got a patent on it the way it was it would cost extra to add the improvements, and for that reason he did not make any extra efforts to get the money” (ans. 64). A plain ease of specious humbuggery. No. 55. Henry F. Drawbaug/z, defts, i. 418.——" They claimed he was going crazy. He said if they were not so ignorant they could see into it more; they would not think he was crazy ” (ans. 48). But another part of Henry Drawbaugh’s story is that he solicited Henry Snyder to advance funds, and, so far from ridiculing the idea, Snyder professes to have seriously considered Whether he would not put $5,000 into it (defts, ii, 536); which story do the defendants want the Court to believe? Henry Drawbaugh says that the effect of ridicule on his brother was, that " he would try to hide it from them,—fron1 all, really” (ans. 50). The other part of the story is, that he showed freely to every one. Arguments to suit each fancied need; facts would be consistent. N0. 56. Peter O'. Zimmerman. defts, i, 434 (1871).—“He said it would be much easier and better than the telegraph, and would supersede it” (ans. 21). No. 57. William H. Bates, defts, i, 439.—" He told me it would take the place of tclegraphing, and remarked that if he had money enough to get it patented, he would be well fixer ” (ans. 29). "He said he could make a fortune out of it” (ans. 33). No. 62. William D. S/mop, defts, i, 484 (1878).—"He told me that he had invented a talking machine which would far exceed the clock, and Would supersede the telegraph” (ans. 6). No. 66. William B. Stone, defts, i, 499 (1871?) .——“He said it was something that would ustonish the worlc ” (ans. 10.) . N0. 76. erm-g/ Snyder, defts, i, 536 (1872, 3, 4 or 5).—~"At every interview after the first, Harry still told me that the facts of his machine was becoming more evident every time that he saw or talked with his brother Dan. I mean that he considered that he was still meeting with more and more success in it, and he said that from the first to the last it Would prove a full and successful talking ma- chine, and that his only drawback was the want. of funds to bring it before the public” (ans. 6). Witness says he seriously considered for some time whether he would put $5,000 into it, but not seriously enough ever to see Draw- 82 BRIEF FOR COMPLAINANTS ON FINAL HEARING. baugh or the machine; yet Henry, a constant visitor at his brother’s shop, could have, and would have, put a pair into his pOcket and shown them to Snyder, it' such instruments existed, and it' there were any truth in this Snyder story. No. 77. David K. Ernst, det'ts, i, 539 (1872).——“ Mr. Draw- baugh spoke to me about his talking machine. I asked him when we went there to show us his things, — machinery, — and he showed as quite a number of things. Among them was.a dial telegraph, which We operated a little on I thought it was a very nice ma.- chine. I asked him why he didn’t go on and finish that ; I thought there was money in it. Oh, he said, he was working at something better which he called a talking machine; I couldn’t say positively that he showed us the machine, although I rather think he did” (ans. 5). No. 90. J. B. Draznbaugh, defts, i (1872 or 1873). —“I can- not say what took place at the time any more than I said to him, ‘ Dan, if this is as good and as profitable a machine as you represent it to he, why don’t you have it patented?’ ” (ans. 102). N0. 129. Andrew Evans, defts, iii, surbtl, 8 (1876).—He seemed pretty enthusiastic about it, "in big glee, and more inter— ested in the machine than he was with any of the rest” (ans. 70, 281). No. 144. diary M. Dari“, defts, iii, 110 (before March, 1870). —— “ My husband came in one day and said to me that Mr. Drawbaugh was speaking of making a telephone, or some sort of a talking ma- chine that he could talk across the ocean with to other parts of.the world. I don’t remember just how he spoke it. My husband told him that he had better invent something to talk acress the Yellow- breeehes first” (ans. 12). Michael N. Nate/zeta (lefts, iii, surbtl, 138 (1871—2). —" He told me that he had a machine invented that he could talk over the ocean, and I said that that was a pretty big thing. I was busy at the time and didn’t say no more to him about it, nor him to me ” (ans. 15.) Jesse Eicholtz, defts, iii, stirbtl, 154; (1873). —He said he would get his talking machine patented and introduced into use " if he had the money or the means, but he hadn't the means ” (ans. 17). “ I told Eyster then, “George, go down there and go in partnership and risk it as far as Hirirrisburg.’ And I Would, too, if I had been him, if I had the means his daddy hat ” (ans. 18). Eieholtz is‘ the witness who says that the water wheel and machinery were started to show that he could hear well in spite of the noise— a physical impossibility. No. 155. Mrs. Brown, defts, iii, surbtl, 164 (1870) :— THE GENERAL RUMOR WAS OF FAILURE. 83 "Q. 16. Do you remember any particular remarks which your father made about Drawbaugh's talking machine, before your mar— riage ? “A. He often said to mother that if he would be able to get it aCCUHIIHlShOLl he would be a very rich man seine day; and that he thought it was a very good invention.” No. 161. Elias Gray/bill, defts, iii, surbtl, 186 (1875).——" He told me it Would transmit news by a wire attached to it.” ” He said it Would take the place of telegraph wires; we were just standing underneath them” (ans. 22, 23). No. 181. Henry L. IIamme, defts, iii, surbtl, 324 (1876).— “ I went back in the small room, and I said to him, ’This lays away over the deck of telegraphing,’ or ‘This will do away with tele— graphing” (ans. 23). N0. 183. Jonathan Fry, defts, iii, surhtl, 330 (1876). —-“I heard Mr. Hamme say it would lay all telegrapliing in the shade” (ans. 14). N0. 186. Wilson 0. F006, def'ts, iii, surbtl, 343 (1867 or 1868). —" He said that he could talk up to his house. He told me all about what his anticipations Were.” " He said that when it was perfected there would be no trouble to connect one point to another” (ans. 12, 13). No. 193. Samuel H. Bates, defts, iii, surbtl, 380 (866). — "One of the men made this remark, ‘Look at Daniel Drawbaugh; personally you would not think there was more in him than a block of wood, and the idea of a man like him to try to invent a talking machine l ’ One of the others remarked, “If he is successful in get- ting it finished he will be the richest man in the valley’” (ans. 1). No. 212. John O. Schroeder, defts, iii, surbtl, 470 (1869—70). —— “ He also made the remark that it might be used to take the place of the telegraph” (ans. 13). No. 274. John F. Keefmwer, (lofts, iii, surhtl, 840 (1872—3).——- ” He said he intended to have them used in place of telegraphing” (ans. 31). No. 298. D. H. SheiZ/ly, dcfls, iii, surhtl, 1021 (1873 or 1874). —" He told me that he had a machine —— 1 think he called it a talk— ing machine, but won’t be positive about the name —- that Would surpass or did surpass the telagraph ; that it would talk to a distance” (ans. 5). No. 209. Aaron M. Egolf, defts, ii. surbtl, 1024 (1872).——"In conversation [with Harry Drawhangh] it came around that tele- graphing was nothing new no more; that his brother had invented a talking machine by which persons in different places could talk person— ally with one another” (ans. 9) . " Harry Drawbaugh expressed himself 84 BRIEF FOR COMPLAINANTS ON FINAL HEARING. that he thought this talking machine of his brothc1’ s was something more wonderful and handiex than the telegraph’ (X 33). No. 304. Jacob A. (776111667771, defts, surbtl, 1058 (1867). — “ II111y1,1id You will see , it will take the place of telegraphing 1n the next five ye 11s’ ” (ans 13). No. 305. Gemr/e Mmphy, J1. ., defts, iii, s11111tl,1063 (1867) — “ H11r1y Drawbaugh said, ‘It will take the place of telcgraphingatter a 11hile ’ " (ans. 4). No 307. Gemge 19.31'17'0/1‘67 defts, iii, surbtl, 1085. ——"He [11. F. D11111 111111011] Went 011 to tell me theh tliat as soon as they could get it completed they 1ve1e going to use it in place of the tele- graph” (ans. 5). No. 313. Samuel A. North, defts. 111, surbtl, 1106 (111ol1t 1869) —” Henry F. Drawbaugh said the talking machine was intended to take the place of telegraphing and be cheaper ” (ans. 15). The Court will observe that the prevailing statement was, that the thing referred to Would supersede the telegraph. This is important. The Defendants’ Proof that Drawbuugh’s l'Vorh was reported 7'71- complele. —But the following alleged general gossip that the thing was incomplete, and that he was a fool for not completing it 01' never could complete it, should be taken along with the alleged gossip that, if completed, it would be very valuable: — No. 3. J. J. Zacharias, defts, i, 56.— \Vhen D. spoke about talking to a distance ” I had my doubts about it”; “ it was too rude a machine to think there was much in it”; ”I talked with George Flee about his neghgcnce in not finishing 11p these patent rights”, talked with Spiinge1'11l10utD.’s thinos “ under contemplation of comi pletion” (pp. 56— —.7) This either 1869 01 1874. No. 8. M. P. Suzy/867', defts, i, 79.—In 1871 or 1872 D.’sl1oy sang through it and whispered F and 13. Several years after this he said that he was making improvements on it, and was going to pro— cure 11 p11te11t.When I first saw it in 1871— 2, I said to him “If this works right and you get it completed, you ought to get a patent iight” (pp. 79 ,-81 87). C'Neve1 tried to transmit bexcept on the one occasion with 15' and B. No.9. U. R. Nichols, defts, i, 100. Saw it and talked through A ; "he said he hadn’ t t1ied it at1 anyk O'reat distance, but if he could get it p liett e11ou<>h to (rel othe1s to lake hold to help him to intlo- date it, he thought it would answer to eonununicate between places of l1u mess in Cities. ” lIis conversation w. 1s that he was " too poor to complete and introduce 1t ” (pp. 100,101). Eithel January, 1675, or January, 1878. THE GENERAL RUMOR WAS OF FAILURE. 85 No. 12. O. Eberly, defts, i, 122. -—-In 1871—2-3, when I would be there, he said he would have it completed (p. 122). No. 13. J. 111. Waggoner, defts, i, 132.—-—In November, 1874, D. was at Work on them, and said “ when they are put together I am sure they will work” (p. 132). No. 18. Jere Fry, defts, i, 156. —- April, 1875, D. did not talk but sang through them. “ I talked with several persons that it is a very good thing it' he gets it accomplished ” (p. 156). No. 28. J. E. Sizetlel, (lofts, i, 219. —1was there often between 1872 and 1878, and from time to time he said “ he was improving them; getting them that he could talk plainly through them and be understood plainly ” (p. 219). No. 30. S. Nichols, defts, i, 240. —-In 1869 or 1870, I under— stood all that he spoke through them. 1t was only two words (p. 240). Really was 1876 or 1877. No. 49. E. R. Holsz‘nger, detts, i, 384.—D. said in 1874 that he would add the improvements to it which would be necessary to make it complete, and then put the whole in one patent (p. 384). No. 53. J. S. S/zopp, detts, i, 406. —— D. said he had a thing here, which, it' he could succeed, would be a good thing (p. 406). No.55. II. F. Drawbaug/z, defts, i, 426. —Recites constant experimenting and alterations. Sometimes I would hear it plainer and sometimes Would hear no sound at all (p. 426). m. m n 7)....“ a..p+.. : 4442 “TIM.“ h and olxnnvnfl rna ' No. 190. Geo. Hosler, det'ts, iii, snrbtl, 367. —In fall of 1872 heard Emanuel Dietz “ make a remark in my shop about Mr. Daniel Drawhaugh and his talking machine. Drawbangh was coming along in a stooping position, and Dietz said, “Here comes Dan Drawbaugh, the damned fool, —he will go crazy trying to make a machine to talk to people away ofl".’” No. 70. Dr. Jlofiit, det'ts, i, 520. ——Up to December, 1878, "I looked upon it more as a toy or matter of amusement than as an instrument of utility” (p. 520). N0. 75. GEO. Brie/Mr, defts, i, 532—111 1870 or 1871 "the trouble with him not making more progress was owing to his not having any money to go on and complete it as fast as he would like to; that outside people looked upon or" considered him crazy, or something like that, and were not willing to assist- him with money to complete his invention” (p. 532). 84 BRIEF FOR COMPLAINANTS ON FINAL HEARING. that he thought this talking machine of his brother’s was something more wonderful and handler than the telegraph” (X 33). No. 304. Jacob A. Graham, defts, surl)tl, 1058 (1867). — “Harry said, ‘ You will see; it will take the place of telegraphing in the next five years’ ” (ans. 13). No. 305. George Mumhy, Jr., defts, iii, surhtl, 1063 (1867).— " Harry Drawbaugh said, ‘It will take the place of telegraphing after a while ”’ (ans. 4). N0. 307. George S. Brio/eel“, defts, iii, surbtl, 1085. —" He [H. F. Drawbaugh] Went 011 to tell me then that as soon as they could get it completed they were going to use it in place of the tele- graph” (ans. 5). No. 313. Samuel A. North, dcfts, iii, surbtl, 1106 (about 1869). -—“ Henry F. Drawbaugh said the talking machine was intended to take the place of telegraphing and be cheaper” (ans. 15). The Court will observe that the prevailing statement was, that the thing referred to would supersede the telegraph. This is important. The Defendants’ Proof that Drawbaugh’s l’Vorlc was reported in- complete. ——But the following alleged general gossip that the thing was incomplete, and that he was a fool for not completing it or neVer could complete it, should be taken along With the alleged gossip that, if completed, it would Vbemvery VillfimL—Hvfli “8m 1' (PP- V 1’, 51-67). Never tried to transmit except on the one occasion with F and B. No. 9. U. H. Nichols, (lefts, i, 100. Saw it and talked through A ; “ he said he hadn’t tried it. at, any great distance, but if he could get it perfect enough to get others to take hold to help him to intro- duce it, he thought it would answer to communicate between places of business in Cities.” His conversation was that he was "too poor 10 complete and introduce it” (pp. 100, 101). Either January, 1575, or January, 1878. THE GENERAL RUMOR WAS OF FAILURE. 85 No. 12. O. Eberly, defts, i, 122. —In 1871—2-3, when I would be there, he said he would have it completed (p. 122). N0. 13. J. M. Waggoner, defts. i, 132.———In November, 1874, D. was at work on them, and said ” when they are put together I am sure they will work” (p. 132). No. 18. Jere Fry, defts, i, 156. — April, 1875, D. (lid not talk but sang through them. " I talked with several persons that it is a very good thing it' he gets it accomplished ” (p. 156). No. 28. J. E. Sizettel, defts, i, 219. —Iwas there often between 1872 and 1878, and from time to time he said “ he was improving them; getting them that he could talk plainly through them and be understood plainly ” (p. 219). No. 30. S. Nichols, defts. i, 240. —In 1869 or 1870, I under- stood all that he spoke through them. It Was only two words (p. 240). Really was 1876 or 1877. No. 49. E. R. Holsz'nger, (lofts, i, 384. —D. said in 1874 that he would add the impiovements to it which would be necessary to make it complete, and then put the whole in one patent (p. 384). No. 53. J. S. 18/201717, detts, i, 406. —— D. said he had a thing here, which, if he could succeed, would be a good thing (p. 406). N0. 55. If. F. Drawbaugh, defts, i, 426.—Reeites constant experimenting and alterations. Sometimes I would hear it plainer and sometimes Would hear no sound at all (p. 426). No. 58. D. Rupj), defts, i. 448.—\Nhen D. first showed me the machine in 1874, and tried to talk, he couldn’t,—he said it was out of fix. “I urged him to get it patented he said that he had not it completed yet or in shape to get. it patented; that he wanted to make some improvements on it.” Afterwards, we spoke about get— ting it patented, and. his plea was poverty. “1 know he plead pov- erty several times that I spoke to him about it after that first conversation, when he said that he did not have it in shape yet” (pp. 448, 453, 457). No. 59. W. AS. Dellinger, defts, i, 463. —I could understand better the last time than the first; I think he improved it (p. 4139). He never told me that he had perfected it (p. 463). This was after the spring of 1876. No. 70. Dr. .llqfiit. det‘ts, i, 520.—-Up to December, 1878, "I looked upon it more as a toy or matter of amusement than as an instrument of utility” (p. 520). No. 75. Geo. Bricker, dl'ftS, i, 532.—In 1870 or 1871 "the trouble with him not making more progress was owing to his not having any money to go on and complete it as fast as he would like to; that outside people looked upon or” considered him crazy, or something like that, and were not willing to assist him with money to complete his invention” (p. 532). 86 BRIEF FOR COMPLAINANTS ON FINAL HEARING. No. 87. If. If. Drawbaugh, defts, i, 575.—In January, 1870, he did not talk in words, but would get me to make sounds that had more force. Soon after that we talked; “ there were some words that we could understand only.” In the spring of 1872 I could un- derstand what he said “just for a little while at a time ; they appeared to require a great deal of adjusting and working at” (p 575). No. 90. J. B. Drawbaugh, defts, i, 62L—Itold him his talking machines Would amount to nothing. While I work for Haucks (1873—4) I first listened. Icould not understand what he said, so he tried to adjust it so that I could understand. After he adjusted . it I understood some words but not all (pp. 621, 622). This ap- pears to be all this witness ever heard. John said to his brother, “It as good as you say, why don’t you patent it? ” He does not state to answer. No. 99. J. G. Landcs, defts, i. 660. —Iu the spring of 1876 D. told me that he should take a p item: if he could get the means. Six or eight months alter this he said he had it so that he could get it patented; he then expressed nothing concerning the means. No. 102. W. Sensemarn, dcfts, i, 669.—In 1872—3 he talked to me. "I could hear and some of the words I could understand.” I was at his shop frequently, April, 1872,—April, 1873. “ He told me his idea was to convey sound, and he thought he could do it.” No. 123. W. H. Decker, defts, ii, 1151.——Visit in 1873. "Look- ing around some little time. I put my hand on this tin can; I says, ‘ What do you call this?” ‘Ohl’ he says, ‘ we are going to talk through that some of these (lag/sf ” The defendants" allegation is that; they had been talking perfectly well through it for five or six years. . No. 314. Samuel lVooch, dcfts, iii, surbtl, 1109.——"Well, they varied ; some thought he Would invent something and others thought he was a little oil in his mind.” Not unnatural about a man who tried to and didn’t invent a talking machine. No. 189. J. A. Sprenkel, defls, iii, surbtl, 307.——“Not believ- ing that such a machine could possibly be invented,” they regarded him as foolish. This was all along from 1808 to 1876. Not much proof that everybody knew that it had been invented and did talk. The Pretence of abject Poverty is false.—He was certainly well off for a mechanic, and during 1867—4876 actually received in cash upwards of $9,000, proceeds chiefly of patents and property sold, though a small part of it was due to the resale ot'a house. He owned a house of two tenements and a blacksmith shop. He lived in one tenement and leased the other and the shop for $110 a year to a good paying tenant. He had the use of a well-titted machine THE FACT TO BE PROVED AND THE PROOF REQUIRED. 87 shop run by water power, rent free. He was an excellent work- man, and needed no mechanical aid. He had his evenings at any rate, and he either ha'l leisure to experiment or else the earnings f constant occupation. He expended in experiments on other inven- tions time and money enough to patent a telephone ten times over and to make a hundred telephones. His friends and neighbors got up the "Drawbangh Manufacturing Company,” an organized cur- poration, into which they paid more than $20,000 in cash; their business was to manufacture articles of his invention, and they paid him $5,000 in cash and $1,000 in stock for one of his inventions. Other persons raised several thousand dollars which were to be expended and were expended in getting up special machinery and making patented articles under his direction, at various times. One question must be answered affirmatively before the defence can have any basis on which to rest:— Did the claimant have a practically operative and successful work- ing telephone before Mr. Bell’s invention? No evidence is of any value except so far as, with legal directness and legal nearness, it tends to prove that. Every piece of evidence, whether it be the present condition of a neighbor’s recollection or a piece of the claim- ant’s history and course of conduct which is not what it would be according to the ordinary course of husnan affairs, if such a fact had existed, displaces it and disproves the pivotal allegation. It will be a task of hopeless length to make sure of all that arose in the claimant’s mind, or happened in his shop during the ten years before Mr. Bell’s patent. The law does not so waste its time. It addresses itself at once to the existence or non-existence of the essential fact; to that alone it expects the parties to direct their proofs. The nature of this sole inquiry makes the truth more ea y of ascertainment, because the presence of a successful working ma— chine soon leads to visible, easily recognized, easily proved, easily (in point of time) located results. The test is nearly two thousand years old, but it can never become antiquated. What kind of proof does the law rely upon in sue/z cases? It knoWs judicially that the possession of such an invention success— fully embodied in such instruments will leave its mark; will govern 88 BRIEF FOR COMPLAINANTS ON FINAL HEARING. or greatly influence the action or course of life of the inventor and of those who come in contact with him. It will influence their action. Unsuccessful experiments may give rise to rumor magnified in propor- tion to remoteness of time and place; success is certain to do more. These considerations do not raise questions of probability merely. They are not to be pushed aside with the remark that the story may be improbable. but that the tlepOsitions ot' eye-witnesses prove that it is true. They (lfiord the only positive proof. The little value of recollection in such cases is judicially known : —- " The confidence of the attacking witness is often in proportion to the distance in time that one is removed from the other. Their imagination is wrought upon by influences to which their ears are subjected and beguites their memory.” Wood 2;. Cleveland Rolling Mill (10., 4 Fish. 560, SWAYNE, J. It is precisely because of that small value that the highest authority has decided that courts shall appeal from the faltering testimony of human recollections to the unfailing testimony of human conduct. In fact, the whole judicial course upon questions of priority of invention has been a constantly increased distrust of memory and a constantly increased reliance on events. Atlantic Wow/cs v. Brady, 107 U. S. 203. In this case it was alleged on the one side that Brady’s history'and course of conduct were inconsistent with the claims he set up that he had made the in- vention in 1866. On the other hand. a considerable number of wit- nesses of unirnpeached character testified positively that in 1865 and 1866 Brady had disclosed the invention to them. The question was of the same kind as that which Judge Sprague had to dad with about the alleged Hunt sewing machine set up against Howe; and the Court dealt with it in the same way. It is said of Brady : —— “ His whole conduct for months, as Well as his total silence on the subject of any prior invention made by himself in all his intercourse with his associates in the contract, with the government officers in charge, and with the superintendent and owners of the foundry where the ‘ Wiggins Ferry ’ was fitted up, is the strongest possible proof that no such invention as he claims had been projrcted by him. The witnesses who speak of his conversations and sketches in December. 1865, and early in 1866, as communicated to them With the utmost freedom, with no apparent object, so far as they Were concerned, must either be mistaken as to the time or as to the THE WEIGHT AND KIND OF PROOF REQUIRED; 89 devices described. Interested as he is in the suit, his own testimony cannot be allowed to prevail against a course of conduct so utterly at variance with‘it. It may be true; but we cannot give it effect against what he did and did not do without disregarding the ordinary laws that govern human conduct.” " There m circumstances within the knowledge of all mankind which prove the originality of this invention more sali~fact0rily to the mind than the direct testimony of a host of witnesses.” The Cotton Gin case, quoted p. 112, infra. The other authorities which show the unvavering firmness with which the courts hold to this rule are collected on pp. 107—126, infra. The facts we have referred to are positive evidence in disproof, and the weightiest which can he produced. They cannot be falsified. They do not forget. Monuments mark a road better than a dull man’s memory of courses and distances. Next we look for papers. Not papers to prove the date of a fact which has no connection Whatever with the telephone except by the mere memory of a witness. but papers which mention a telephone or mention something which by a necessary connection, and inde- pendent of memory, fastens itself to the telephone. The defendants have not produced a single paper or sketch which purports to be of this character. This fact itself is surprising. Every scrap of paper produced which bears directly on Drawbaugh’s history as an inventor has been put into the case by us and is inconsistent with his story. Among them are two lists of his chief inventions printed or fur- nished by him, one before and one after Mr. Bell’s patent; neither mentions telephones. The whole proof for the defence is purely oral. They have sketches and have suppressed them. Certain instruments indeed are produced, but they are not identified by any witness capable of knowing how much they vary from their original condition, and everything as to their dates and their results rests purely in memory; and by that we mean, a memory not forti- fied by the conduct to which successful instruments would give rise, but accompanied by conduct inconsistent with the knowledge asserted. Upon the question of prior invention the courts attach but little importance to the number of witnesses; they scrutinize the charac— ter, not the quantity of the proof. More than one such defence has failed where all the witnesses touching the fact were on one side. 90 BRIEF FOR COMPLAINABTS ON FINAL HEARING. The patentee has often prevailed on the defendant’s own record. If the man’s conduct does not correspond to his story, the story is rejected, no matter though i“ the direct testimony of a host of witnesses” joins with him in the assertions. And besides that, the Court requires that the evidence in the defendant’s record shall be so clear, so free from inconsistencies, so fully account— ing for and fitting to all the facts. and intrinsically of so high a character as to remove to the possibility of the errors and falsities which judicial expiricnce knows often pervade the tairest seeming cases of this class. “In lVood v Cleveland Rolling llh'll 00., 4 Fish. 550, 560, Mr. Justice Swayne said : ' W'hcn the defence is made, it, is the duty of courts and juries to give it effect. But such testimony should be Weighed with care, and the defence allowed to prevail only when the evidence is such as to leave no room for a reasonable doubt upon the sultjcct.’ “In l’arham v. Am. Buttonhole 00., 4 Fish. 468, 482, heard be— fore Mr. Justice Strong and Circuit Judge McKennan, the latter, in delivering the opinion of the Court, said: ‘ The evidence must estab— lish clearly the priority of a completed and useful machine over the complainats, or it is unavailing. To doubt upon this point is to resolve it in the nrgative.’ ” leayer v. Ilart, 20 Fed. Rep. 693 (June, 1884), COXE, J.— " The rule in such. cases is very strict. It is so easy to fabricate or color evidence of prior invention, and so difficult to contradict it, that proof has been required which does not admit of reasonable doubt. Where interests so vital are at stake, Where intervening years have made perfect accuracy wellnigh impossible, Where an event, not deemed important at the time, has been crowded from the memory and obseured by the ever-varyingr incidents of an active life. it is’not difficult to imagine that even an holiest man may be led e *1'0neously to persuade himself that the fact accords with his incli— nation concerning it. “ The evidence of prior invention is usually entirely within the con- trol of the party asserting it; and so wide is the opportunity for deception, artifice or mistake, that the authorities are almost unani— mous in holding that it must be established by proof, clear, positive, and unequivocal; nothing must be left to speculation or conjecture.” It is for this reason that we ask of the Court a careful scrutiny of the defendants’ proofs. Their mass is so great that some men might let them go unchallenged rather than wade through them. But when examined, it turns out to be flimsy as a whole, and a large part of it is oer-upied in contradicting the rest. THE \VEIGHT AND KIND OF PROOF REQUIRED. 91 To no case should the rule be applied so stringently as to this. A claim preferred against a patent which for four years had made the inventor famous, and had reached commercial success; upon the faith of which, unchallenged by the claimant, vast sums had been ex— pended, thousands of persons employed, and appliances and estab- lishments for its use created; which had given rise to hundreds of new inventions ,and ministered to the wants of millions of people; the claim tardily made, in the name of a man who never applied the invention to any useful purpose, who had done nothing for the com— munity, whose conduct disproves his story, who rests on oral testi- mony, and whose advent is he aided by the newspaper proclamation that its “vastness of interest as well as wealth of pi'ospect renders it a subject of national interest ”— to the speculators who had bought him up. The failure to call witnesses who should know best, is satz'sflzctory proof that the story is untrue. His story is that all he did was freely shown. The telephone is a thing which requires at least two persons to try it, and could not be kept secret in a village community. We in~tinctively inquire first of his partners and fellow-Workmen. If they are all ignorant of the alleged invention, the Court will not rest on the alleged recollection of chance visitors. The fact that those so near him did not know of the alleged inven- tion is as persuasive proof as memory can offer; the Supreme Court has so declared in Brady’s case, characterizing “ his total silence ” in his intercourse with those at the shop where his work was done. and with his business associates as part of " the strongest possible proif.” The testimony of the claimant‘s business associates that he told them nothing of what others profess to know all about, the Court does not look at as proof of forgetfulness on their part, but as pesitive evidence of the strongest character. The defendants are to prove a clear case. The established rules of decision require this, whenever the attempt is made to overthrow a patent. They particularly insist upon it where the attempt is made to overthrow so conspicuous a patent, at so late a day, by so stale and suspicious a claim, upon mere oral recollections of dates and occurrences. In a record which holds three hundred and sixty—six witnesses for the defence, — many to more rumor of rumor, —— the failure to call those persons who had regular and constant connection 92 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. with the shop is. under such circumstances, according to the estab- lished rules of decision, an admission that their testimony Would be adverse. This is not left for inference. Many such persons have been called and disprove the alleged instruments. They are ignorant of the alleged invention; they disbelieve it; they (leny it. The Supreme Court says: "His total silence . . . in all his intercourse with his associates is the strongest possible proof.” . Brady v. At- lantic War/cs, p. 88, supra. The books are full of cases where the courts have held that the failure of a party to produce, upon a sharply contested question, the best testimony and " the most perfect exposition,” atl'ords solid ground for the presumption “ that if produced it would give a complexion to the case at least unfavorable, if not directly adverse to the interest of the party.’ rule and also shows its wisdom. The defendants’ record is full of a The present case calls for the rigorous application of the vagueness and uncertainty. Habitually they pass over the witnesses whose position made them most certain to know the truth, and resort to those who rely on hearsay or mere chance opportunities for im- perfect knowledge; and in case after case it has been proved as a fact that the better grade of observers. when placed on the witness stand, are “directly adverse to the interests of the defendants.” It was their duty to bring before the Court every person in the village, for if their story be true, all must have known of the telephone; the evidence shows that they have selected the less informed and more distant, because the others would hurt their case. The author— ities on this subject are c illected on p. 129, infra, beginning with an opinion of the Supreme Court, d'awn by NELSON, J. The claimant came in contact with a considerable number of enter- prising and observant men, capable of seeing the value of the speak— ing telephone, and with such means and dispositions as would lead them to take it up if he had had it. Many such men have testified, but none of them knew of his having such an invention. Such wit- nesses are more reliable in themselves than the dull and unintelligent ; but their greatest value does not lie in that. It is impossible that such witnesses could be called to support such a story as the defend- ants assert, for such men, if they had known of the thing, would not have suffered it to remain unused nor unpatented. THE MEMORIES THE DEFENDANTS REST ON. 93 \‘Ve have actually put on the witness stand forty men, familiar with his work. who would have known of a speaking telephone if a real one had existed, and who never heard of such a thing before Mr. Eell’s patent. . The kind 0]" 1116772097} on which the Defendants are forced to rest their (Jase. —W'e are to investigate what took place in the claimant’s Workshop during a series of years. Before his claims Were pro- . claimed. he and his associates had visited his neighbors, talkel upon the subject, and taken a large number of so—t-alled affidavits, fifty to one hundred. When We began to inquire, the community found itSeIf committed. The Complainants labor to the full under the prejudice of local feeling, in a community very full of it,——a farming population in the interior of Pennsylvania. Witnesses who, familiar with Draw— baugh’s work, have no memory of a speaking telephone, cannot, against social influence, he brought to testify against him, but would shelter themselves'nnder the pretence that they are not sure, might have forgotten, etc , while the daily and nightly gossip at the tavern, the store and the shoe shop would stimulate the feeling of clanship into What is offered for memory. In the language of Judge BlatCh- ford, " They are in a position naturally to respond to his influence 7 upon their memories.’ The surrebuttal testimony gives examples of this. Person after person who, two years before, were privately examined and knew nothing, blo~somed out into witnesses of most important knowledge. (See G. A. May, A. Kahney, Simmons, Jonathan Fry, Jacob Evans and wife, and others.) Mere supposed recollections of a matter which hardly-interested the curiosity of the witness is the mast the defendants can appeal to, and it is upon such recollections that the defendants rest for dates many years old. The allegation or admission about all the de— fendants’ witnesses is, that none of them ever acted in consequence of an alleged knowledge of an alleged telephone; that it was to each of them, whenever they knew of it, a mere trivial incident which at most excited a moment’s curiosity. That a telephone which would speak could be so passed by we do not believe; but this is their story; and, if so, it was to them a mere detail, unimportant, and substantially uninteresting, unnoticed, and not understood. 94 BRIEF FOR COMPLAINANTS ON FINAL HEARING. To such a matter the date hangs very feebly. And yet they under— take. after ten years, to remember a date, to identity an instrument, to repeat conversations. Here, however, in addition to that the de- fendants’ witnesses, with no important exceptions, are. dull men of small education; for months before they testified, fed with local gossip, warmed by local feeling, till they cannot tell with any cer— tainty how much of their present notions Come ft om old recollections, how much from recent absorption, nor ho w much of them is a growth which is in etfect a falsification. They had heard of a telephone at Drawbaugh’s shop for some years before they testified, and they had early heard of other electrical contrivances, of which his stop was full, and which they were equally unable to understand. Such men are peculiarly liable (in Judge Sprague’s phrase) “ to blend :1 subse— quent recollection with a prior one.” Again we look at the mental character of the witnesses. An in— telligent. observant man. instructed in inventions or concerned with them, in intimate and friendly intercourse with the claimant, but who heard nothing of the alleged invention, though the claimant told him of other and far less important inventions, is of more value to the Court than a dozen Pennsylvania farmers or farm l'tb )I‘BI‘S, gullible now and gullible then (defts, i, 529), th'ck wilted, requiring lead- ing questions which formulate the'answer to get anything from them, without the capacity to understand, or the intellectual activity gen- erally needed to awaken a witness to such a sense of responsibility as to make it more than a matter of chance whether a question brings an unthinking yes or an unthinking no. This is especially true where the question turns upon the cha'ac- ter of an instrument or the recollection of a date. Cumulative memory, all from a dull and interested community, is oflittlc value. It is not circumstantial proof. It only shows the results of the grocery store callous, where all follow the one strong- willed man, and swear as he leads them. The Claimant does not know the Origin of his alleged Invention. —The inherent nature of this invention raises, to say the least, an improbability that the claimant should have made it. It has been seen that it depends upon a knowledge of what constitutes quality and articulation, as distinguished from pitch. No empirical experi- ments could have led to it; it was out of the range of any known THE ALLEGED INVENTION HAD NO BIRTH. 95 experimentinv. According to the [claimant’s account of his own attainments, he knew nothing of all this. What process of thought led him to this invention? To this he attempts no answer. Au inventor never forgets how a great idea comes to him. He remembers his course of thought, and what led him to his first form ot‘ machine, and what led him to his principal changes. Nothing of this is found in Drawbaugh’s long deposition. There is no part of the case more astonishing than this deposition. It. reads as if the witness were a spectator and not an inventor. A bystander would have known as much about the matter. The care with which it was cmfiucd to mere details, the skill with which the claimant and his 0 )uusel avoided all references to the mental growth of the invention, were evidently the result of deliberate prearrangcmeut. The de— fcndants’ counsel let his vigilance sleep but once. He once ventured on a question such as with a real inventor would have been the basis of the examination. The first alleged instrument is alleged to have been a soft carbon transmitter depending upon the property of carbon powder to change its electrical conductivity with changes of compacting pressure. It was a property known, but quite outside of ordinary knowledge, noticed only in one or two books. The defendants asked (defts, ii, 804) :— " Q 148. Did you have any idea or theory at that time as to the reason why the low conductor when under pressure would allow the electric current to paSs more freely than when not under pressure; if so. what was your theory regarding it? “ A. I think 1 had a theory or an idea; the conductor, in a loose way, Wouldn’t be in a condition to conduct as large a quantity of electricity as when compressed; it would resist more than when compressed. “ Q. 149. Why? " A. The particles were farther separated when loose. " Q. 150. Do you remember how you tirst obtained knowledge of that fact, that low conductors when under pressure would conduct the current more freely than when not under pressure: that is to say, did you learn it by reasoning it out and then testing it, or by accidental discovery, or by reading it somewhere, or by hearing it from some one, or how ? " A. I don’t remember how I came to it; I had been experiment- ing in that. direction; I don’t remember of getting at it by accldent, "'3 re”. ,.....<,..r ... 96 BRIEF FOR COMPLAINANTS ON FINAL HEARING. either; don’t remember of reading it; I don’t remember of any one telling me of it; I don’t suppose any one told me.” ~They never ran the risk again. T/zc Ii'le'rmnents and Remains of Instruments produced, and their Value. — “There instruments are offered with which it is asserted that certain results have been produced, there is no better test than to put to the instruments themseives the question whether, when fully repaired or reproduced by the alleged maker, they can do it now. This question has been put; the complainants insisted that the defendants themselves should put it, by their own operators, on their own premises, with instruments which they themselves pro- duced, but in 25/26 presence of witnesses; the results justified our confidence that the instruments could not do what was alleged of them, and that the defendants’ witnesses were entirely untrust— worthy (v. p. 161, infra). " The stubborn fact that Hunt’s machine would not work, and that Howe’s would, made the oaths of the witnesses as inoperative. as the machine.” Ely c. Monson Mfg. Co., 4 Fish. 79 (1860), SPRAGUE, J. These exhibits have another value. They do not tell their own dates, but they tell their own sequence; anda period when the worst and rudest was in use was necessarily a period before the better ones were made. Much help is got for the complainants from this. THE LAW OF THIS CASE. The defendants’ story and etl'ort at proof are that before Mr. Bell’s invention the claimant made the instruments F, B, C, I, A, D, E; That each pair of them (or some pair of them) constituted a practi- cally operative electric speaking telephone apparatus; That its character as such was demonstrated by actual use in the presence of a large number of persons who themselves talked over it with success. But it is also a part of their story, though he was a patentee in respect of other matters,— That he never presented this to the Patent Office, though he pat— ented other things ; That he never described it in any publication, though his other in- ventions were mentioned in print; That he never applied it to any useful purpose, but tried his in- struments only from one part of his shop to another; WHAT THE DEFENDANTS MUST PROVE AND HO‘V TO PROVE IT. 97 That he did not keep them connected to wires, that is, he did not permanently have in existence :1 speaking telephone, which necessa— rily involves and means a transmitter at one station, a receive‘ at another, a line wire between the two, with other appliances, but kept the instruments all in one room, in a cupboard, etc., and placed them at the respective temporary stations, and tempo ‘arily connected them upon substantially each occasion of use; That his only use of any instruments was " to gratify curiosity or for purposes of experiment” (Simpman, J., in Brush 7). Condit) ; That he never ofl'ered to the public at large nor to any individual to furnish a telephone for practical use or for a price ; That he never explained the construction and modus operandi of the apparatus to any one who had sufficient intelligence or sufficient knowledge to understand hoW it worked or 110w it was constructed; That the community never did, in fact, obtain from, by or through him any knowledge of how to make a speaking telephone or how to transmit speech. Per con tra. Mr. Bell was an original inventor. He invented the speaking telephone, patented it, exhibited it, became famous for it, was uni- versally celebrated as. the sole inventor and originator of it, made it known scientifically, theoretically, and practically to the world, introduced it promptly and extensively into public and commercial use, — and all this before he or the community at large (at least) had heard that D‘awbaugh claimed to have touched the subject. This was the prize he had justly earned; it was the defendants’ temptation. Home V. Underwood, 1 Fish. 162, SPRAGUE, J. —"This patent of Mr. Howe was obtained in 1846. Up to that time the public was in possession of no similar machine for sewinOf. So far as the evidence is presented to the Court in this case, such an instrumentality for saving of labor was not then known. Such an invention had never been practically used, —-I mean it was not known to the public for any practical or useful purpose. Whether it was known within the meaning of the law in the case of Mr. Hunt’s machine, the Oohrt will consider hereafter. The first machine for practical use was made from Mr. Howe’s patent, and since he obtained that patent numerous machines have been put in operation. . . . 98 BRIEF FOR COMPLAINANTS ON FINAL HEARING. " Now, to whom is the public indebted for the present useful im— provement, or useful existence, of the sewing machine? Upon that there is no question. The re is no evidence in this c1se that le1 1ves a shadow of doubt that, for all the benefit conteried upon the public by the introduction ot a sewing machine, the public are indebted to Mr. Howe. The Constitution of the United States contains a pro— vision which is the source f1 om which Congrse s derives the power to give to inventors all exclusive light as against the community' , and all the legislation of Congtess 1s founded upon that provision and intended to early it out. What Is that provision? That Congress shall have powm' to promote the progress of science and useful arts by seenrinw for limited times to authors and inventors the exclusive right to tl1ei1 respective writings and di eoveries.’ Now, who has promoted this use -tul art? \V 1111 is it, in tl1'se11se,that comes within the meaning of the (. onstitution that to promote the progress of the useful arts Congwss shall have power to soothe to inventors their inventions? Unquestionably Mr. Howe, and no other person. . . . - “ It was seen by various persons there, and its work examined. Some describe it as sewinu \\ ell but in no single instance was the work done tor use ot any name or de cription, and in no single instance was the work (lone ever put to any use whatever. This machine was never used for any purpose whatever, nor was any per— son ever known to seek for it, or for its product, to be appropriated to any use whatever. Now it is a little remarkable that a perfect sewing machine, such as d1scribed by the witnesses as piodueing beautitul Work, s'ttong Work, as some of them say,—a machine pertL eeted, and. as some of the experts say, better than Howe’ s; and one of them says, 11 machine 111 sortie respects better than any ma— chine he had ever seen ; yet never produced work that anybody ever used for any purpose whatever, in the city of New York, or ever SouOht to us e for any purpose whatevet' , and that it was laid aside for years, without ptoducing either wo1k or propatmtintr itself in other machines ever after. This is a phenomenon that requires to be accounted for. . . . " How does it happen that the mother and daughter, if it pro— duced such work, did not desire tl11ir brother to 0‘et one for their own use? The manufacturer was a pe1son in their own family, yet they never expressed a wish for one. There was A1ro1v>mith, who had the ownership of it; there was Adoniram Hunt, both in Baltimore; but nobody there, 01' anywhere else, attempted to obtain or expressed a desire to obtain the use of that machine for any piactical purpose whatever. . . 1” Finally, the claimant does not come forward himself, nor is he brought forward by any one who wished to use an instrument he had devised, but was sought out as a defence by infringers. WHAT THE DEFENCE MUST PROVE AND HOW TO PROVE IT. 99 \VHAT MUST BE ESTABLISHED TO MAKE A DEFENCE; TIIE ALLEGATIONS \VHICII THE DEFENDANTS FELT BOUND TO MAKE AND ARE BOUND T0 PROVE; THE NOTORIOUS ADVE {SE FACTS ADMITTED AND THEIR CONTROLLING EFFECT AS PROOF. Perhaps the requirements of the law are indicated in the defend— ants’ answer as well as anywhere. It seems at first a little efl'usive, but it states no more than must be proved. It alleges practical tel— ephones fit to be patented and to be duplicated for public, practical and commercial use; it alleges that they were known to and used by large numbers of persons; the law requires as much. Such a ma— chine could not exist without becoming known, and the failure to prove general knowledge and tolerably extensive use will disprove the existence of any operative machine. But along with what they necessarily alleged, there were certain facts in their man’s history notorious and obvious. ‘Ve knew them, and alleged them in our bill. Briefly, they were that, up to the time when this controversy began, no telephone of Drawhaugh had ever been put into practicaluse, and all the telephones in the country had been furnished by Mr. Bell and his associates under his patent. These facts were so pertinent as matter of law that the defendants necessarily had to meet them in this answer. They admitted them, because they could not do otherwise, and then they sought to allege such matter of fact as they could, which might tend to satisfy the Court that the inventor and possessor of a real telephone could have acted as this man acted. Their allegations in this behalf, sworn to after eight months of preparation, must be considered by the Court as all that can be ofl'ered. They must be proved as facts, and found sufficient as causes; the law requires this, and the care with which the defendants have alleged them in the answer, shows that they know that theyxcannot escape the burden. The invention must not only be completed in a mechanical sense in the inventor’s private room; it must be so disclosed to the public— that is, to some person other than the claimant—that knowledge how to practise it does not rest merely in his own mind, or in instru- ments kept under his lock and key, and used only for private experi— 100 BRIEF FOR COMPLAINANTS ON FINAL HEARING. ment. The law requires this, as a fact to be proved; good sense demands it as proof of the existence of the invention. ” The legislature meant knowledge and use in a manner accessible to the public.” Gnylor '0. Wilder, 10 How. 177. It is the invention which is to be known, and not the result of it; how to transmit speech, and not that speech has been transmitted. In short, the dis— closure must be by use for commercial purposes in the ordinary course of business, or else such as is adapted, so far as the nature of the case will admit, to enable the‘ public, through the witnesses who rep- resent it, to learn what a printed publication must show to invalidate a patent,—not that something new has been done, but how to repeat it; and as mere matter of evidence, unless the disclosure be of this nature, the Court can never learn what the alleged prior inventor has done. In this case no such knowledge ever existed. The claimant showed the outside of the boxes in which the telephones were encased : and if he had shown more, no witness the defence have called (with the possible exception of one of the claimant’s nephews about one ma- chine) ever knew or had the capacity to know either the structure or the modus operandi of any instrument. The invention was never disclosed ; it was in fact concealed, because, while he knew men who were capable of understanding it, it never (ifit existed) was shown to them. This is not enough to satisfy the law; and under the cir- cumstances of the case, these facts exclude the possibility of reliable proof. The defendants have produced three and a half sets of instruments alleged to have been made before the date of the Bell patent. The two sets ot'these whose alleged date gives them importance (F and B and C and I) are not instruments, but mere remains. Their opera— tive parts do not exist; and what they were, or how often and how much the interior of those and of all other instruments was changed depends entirely upon the testimony of the claimant himself. No other witness knows, or is capable of knowing. In fact, many of them have sworn to the identity of instruments admitted to have been entirely changed since they saw them. In other words, the veracity and identity of the exhibits, and the real character of the alleged in- WHAT THE DEFENCE MUST PROVE AND HOW To PROVE IT. 101 struments, rest solely on the deposition of this heavily interested claimant, bought up for the purpose of swearing to them. The crowd of witnesses called may serve to cattle—fish this cardinal ques— tion, but they cannot make it clear. To use a homely phrase, how strong a case must the defendant make out in order to prevail? The burden of proof is on him; a bare preponderance will technically satisfy that in some civil cases, but it is well settled in patent cases that this is not enough; all doubt must be removed. How many witnesses will remove doubt? That depends upon the nature of the case. Few things have ever been better proved than witchcraft and demoniacal possesfion accord- ing to a superficial View of the law of evidence: abundance of unim— peached witnesses; the sufferer; no other adequate cause assignable; contemporaneous declarations by the accused; general repute; often the voluntary confession; even to-day we could not disprove it by depositions; but no witnesses could prove it now to us, because the modern mind ” knows that it is not true.” One inquiry is what ultimate facts the law requires to be proved; and another is what probative effect towards the ultimate result, the courts give to the facts stated and admitted, proved or failed of proof, which surround the claimant and his claim. In practice the two inquiries are not often separated, and in a case in equity there is no practical advantage in doing so. It is perhaps enough to say here that no court, even when the strongest 112's major was urged as an excuse, has ever recognized any alleged prior invention, unless accompanied by the probative fact of actual use, vouched for by skilled men, who well understood the contrivance in question. And the more improbable or doubtful or suspicious or stale the defence alleged, and the more striking and valuable the invention, the more is required absolute proof effects and conduct which in their character are conclusively probative of the cardinal fact allegedp Undoubtedly every invention is in a sense the realization of the improbable; still, a nation which grants 15,000 patents a year knows better than any other that invention is not a departure from the laws of human nature. and that inventors are men. The Court learns of their past by their conduct in that past. 102 BRIEF FOR COMPLAINANTS ON FINAL HEARING. The courts, therefore, look upon the surrounding facts and the history of the claimant before, during and after the period of the al- leged invention as the most persuasive proof; and not only as the most persuasive proof, but as proof so cogent that of itself alone it will or may call upon the Court to disregard the otherwise uneontradicted testimony of a substantial number of otherwise unimpeached and unassailahle witnesses. We proceed to quote the cases which will be found particularly useful. Boulton dé Watt v. Bull, 1 Carpmael, 137 (1795), Mr. JUSTICE BULLER.— “ Few men possess more ingenuity or have greater merit. with the public than the plaintiffs on this record; and if their patent can he sustained in point of law, no man ought to envy them the profits and advantages arising from it. Even if it cannot be sup- ported, no rnan ought to envy them the profits which they have received, herause the world has undoubtedly derived great. advan- tages from their ingenuity.” The Supreme Court has stated the antithesis of this. [Kendall v. Winsor, 21 How. 322 (1858). The Court here de- cided that an inventor who kept his inVention secret did not come Within the purpose of the Constitution : — “He does not promote, and, if aided in his design, would impede the progress of science and the useful arts. And with a very bad grace could he appeal for favor and protection to that society which, it' he had not injured, he certainly had neither benefited nor intended to benefit. Hence, if during such a concealment an invention simi— lar to or identical with his own should be made and patented, or brought into use Without a patent, the latter could not be inhibited nor restricted upon proof of its identity with a machine previously invented and withheld and concealed by the inventor from the pub- lic.” Howe v. Underwood, 1 Fish. 162, SPRAGUE. J. —“ Now, to whom is the public indebted for the present useful improvement, or useful existence, of the sewing machine? Upon that there is no question. There is no evidence in this case that leaves a shadow of doubt that for all of the benefit conferred upon the public by the introduction of a sewing machine, the public are indebted to Mr. Howe. The Constitution of the United States contains a provision, which is the source from which Congress derives the power to give to inventors an exclusive right as against the community; and all the legislation of Congress is founded upon that provision and intended to carry it out. What is that provision? That CongreSs shall have power to THE PROOF REQUIRED. —— THE AUTHORITIES. 103 promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective \Viitings and discoveries. Now, who has promoted this useful art? “"ho is it, in this czise, that comes within the meaning of the Constitution, that to promote the progress of the useful arts Congress shall have power to secure to inventors their inventions? Unqucstionably Mr. Howe, and no other person.” This is the spirit with which the courts approach these cases; and no instance exists where the honor and profit of an important or at- tractive intention has been takenfronz an inventor and patentee, who in fact furnished it to the community, and given to a tardy claimant from whom the community had derived nothing. The Erbe Loo/c case, O’oflt‘n v. Ogden (1870—73). —This case was very peculiar in one respect. The Court not onl\ had no doubt about the facts, but they were forced to the conclusion that the parties who were against Erbe, the alleged prior inventor, had no doubt about the facts, and deliberately set to work to suppress the truth and deceive the Court; for it appeared that one of the promi- nent parties had done his best to prevent the defendants from taking the deposition of Erbe and others who had knowledge of Erbe’s work, and threatened to discharge them and have them excluded from employment at Piltshurg where they belonged. The Supreme Court used the phrase “in odium spotz'atoris” in a way which showed that the Court were so much affected by this behavior that they meant to decide and thought they ought to decide in favor of the alleged prior inventor, Erhe, every question of fact which was susceptible of controversy. The invention was ofa Janus-faced lock which could be put upon a door in either direction, and it consisted in the rear 'angetnent of three pieces of cast iron in the interior of the lock. Intellectually speaking it was a small invention, a mere contrivance. There was nothing in it to attract great attention, and, under the circumstances, it was not at all surprising that it did not go into general use. Moreover, the fact of completed invention was beyond controversy. Judge Blatchford, at the circuit, said that the nature of that sim- ple and purely mechanical invention was such that—- " The exhibition of a lock containing it to persons versed in lock making who understood its construction and working, and who 104 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. recognized it at the time as a completed thing capable of Working and effecting the result intended, as to reversing the latch, and who were shonn how it worked, so as to be capable of being used for either a right-handed or a left-handed door, must be regarded as substantially a use of the reversing mechanism which is the whole invention.” That is to say, in substance, the learned Judge held that, turning the thing over in the hand, and throwing the belt, was a use which demonst 'ated that, when turned over, the bolt could be thrown. He continued : —— “ Such use as Erhe put the lock to in showing Brosi and Masta and Patterson how the reversing mechanism practically worked, em- bodied as extensive and effective a use of such mechanism as it would have been likely to have had if such lock h-td been sold to a pur- chaser who should have put it in use upon a door.” Plainly this was so, for the first thing one who saw such a lock on a door would do, in order to know what it was, would be to take it off and do just what this man did. The Supreme Court, however, found actual use on a door, and considered that an essential fact to be found. Oefiin v. Ogden, 18 Wall. 120, SWAYNE, J. ——VVhen the case got to the Supreme Court they evidently felt that the language of Judge Blatehford carried the law further than they were disposed to carry it. He had some doubt whether the lock was ever put actually upon a door. The Supreme Court found, as a matter of fact, that it had been put upon a door, and used enough to demonstrate by actual use that it worked well; and its construction and ope'ation shown to several skilled men, it is apparent from the latlgmge of their opinion that they felt that they could not decide against the patent unless they had found those facts. " The invention or discovery relied upon as a defence must have been complete, and capable of producing the result sought. to be accomplished ; and this must be shown by the defendant The hur- den ot' proof rests on him, and every reasonable doubt should be resolved against him. . . . " If the thing were emhryotie or inchoate; if it rested in specula— tion or experiment; if the process pursued for its development had failed to reach the point of consummation, it cannot avail to defeat a patent founded upon a discovery 01' invention which was completed, while, in the other case, there V'tlS only progress, however near that progress may have approximated to the end in View. The law re- THE PROOF REQUIRED. ~—-TuE AUTHORITIES. 105 quires, not conjecture, but certainty. If the question relate to a machine, the conception must have been clothed in substantial forms which demons-hate at 'once its p ‘acti sal efficiencv and utility.‘ The prior knowledge and use by a single person is sufficient. The num— ber is immaterial. Until his work is done, the inventor has given nothing to the public. . . . "Here it is abundantly proved that the lock originally made by Erbe was complete and capable of working. The priority of Erbe’s invention is clearly shown. It was known at the time to at least five persons, including Jones, and probably to many others in the shop Where Erbe worked; and the lock was put in use, being applied to a door, as proved by Brossi. It was (has tested andshown to be successful. These facts- bring the case made by the appellees within the severest tests which can be applied to them.” The cardinal facts in that case are that the capacity of the struc- ture to practically serve the purposes of a lock was shown by open- ing and closing a door to which it was applied, and that also such demonstration had also taken place in the presence of skilled men; that they, examining the interior and understanding the modus operandi of the parts of a full-sized luck, when worked in the hand, knew that it was perfect, and the Court at the hearing found no con- troversy of fact as to the perfection of the structure. Kelle/aer v. Darling, 4 Cliff. 424 (1878). — Five years after Oofiin v. Ogden, Judge Clifiiii‘d explained his understanding of the doc- trine of it : — "Incomplete attempts to construct a machine amount to nothing as evidence to support such a defence, but if the evidence shows that it was complete and operative, even for a tempo‘ary use, and that its existence and use were within the knowledge of a few persons, it may be sufficient to establish the proposition that the thing patented was made and used by another prior to' the patented invention.” The learned Judge did not say what he meant by ”within the knowledge,” nor did he mean to intimate that a thing could be ” within the knowledge ” of a person who did not know how it was made or ope ‘ated, and had no means of ascertaining either,—— mental defects or a thick door interposing; nor did he consider that the in- ventor could constitute " a few persons.” He understood also that the use found was and must be practical, though " temporary.” Judson v. Bradford, 3 Bann. and Artl. 539 (1878), CLIFFORD, J.— “ Since the decision in the case of Oofin v. Ogden, 18 Wall. 106 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. 120, it must be conceded that the evidence is stiflicient to support the defence of prior knowlet ge and use if it proves that the inven— tion was complete and capable of Working, if 'it had been put in use and was known to any considerable number of persons.” But what is to be known is plainly the " invention,” and Ht t the re— sults of it, nor does it help the matter that the nature of Mr. Bell’s in- vention is such that speech, so far as we know, cannot be transmitted by electricity without employing his invention. \Ve did not know that before the patent, and the alleged prior invention must be proved without thevuse of the subsequent knowledge we derive from the patent. The lock case has no considerable bearing on this controversy. The control.ing facts#that Erbe, at a sufficiently early period, made a lock which in fact was practically operative, and was known to be such by several experts who then examined it——— were beyond controversy. But here, to put it in the mildest form, the evidence slioWs that the dates alleged for the instruments and their asserted operative character are violently assailed. No such conflict, so the Court‘found, existed in the lock case. In all the cases, the Court, in endeaVoring to ascertain Whether at the particular time the claimant had an operative machine of a cer- tain kind, paid its chief attention to and placed its chief reliance upon the result of the inquiry Whether the consequences which appeared in the conduct, action and the behaviour of the man and of those around him were such as Would naturally flow from the possession of such a machine, or were such as would not flow from the possession of such a machine. There has never been an invention which appealed more to popu- lar favor, which more quickly excited a universal interest, which could be more readily used by private and unskilled persons, or the instruments of which were more easily and cheaply constructed, than the speaking telephone. This is obvious from the nature of the in- vention, and it is proved as a positive fact by the reception which the invention met with when Mr. Bell first published it. That such an invention in its perfected state should remain in the hands of a professional inventor and patentee, be made known during many years to a very large circle of persons within gunshot of the capital THE PROOF REQUIRED.—THE SEWING-MACHINE CASES. 107 of a great manufacturing State, and never be used nor offered for use, nor sought for use, nor known to any man capable of under- standing it, is something which, in the legal sense, is such an impos— sibility that it takes the strongest evidence to overcome the pre— sumptions which any intelligent and sound reasoning man would feel arising in his mind under such circumstances. And these presump- tions have been decided by the courts over and over again to amount to positive evidence entitling them to overweigh and overthrow the depositions of otherwise uncontradicted witnesses. The general rule which requires a reduction to practice is too well known to need authorities. The following cases illustrate more especially — The way in which questions of fact are usually presented and habitually dealt with (pp. 107—118). The amount, character and clearness of proof required (pp. 118- 125). . The value which the courts attach to the conduct of the claimant and of those about him (pp. 125—8). The inferences which they draw from the failure of the claimant to present the testimony of those who had the best opportunities for knowledge (pp. 129—133). The Sewing-[Vachine Cases. —— The Howe sewing—machine cases are of great importance. They came up first on a motion for pre— liminary injunction, and were decided in favor of the patent after a Vigorous contest, and then, on final hearing, before Judge Sprague. The patent again came up before Judge Clifford, who also sustained it. There was not the slightest doubt that Hunt had made a machine. The remains of it were produced. There was no serious controversy on that fact. He intended it for a sewing machine; there was no doubt about that. When he turned the crank or applied pmver to it the parts moved and in that sense operated; there was no doubt about that. They drove a needle which carried a thread through cloth for the purpose of sewing two pieces of cloth together; there wasno doubt about that. Some pieces of cloth were put together by it, and, having been put together in one or two instances, at least, altogether put together merely for the purpose of seeing how the machine would go and whether it would go, and perhaps 108 BRIEF FOR COMPLAINANTS ON FINAL HEARING. exhibiting it in motion, were afterwards used. The depositions were all on one side, so far as can be discovered from the reports of the case, and they were the depositions of parties professing to have personal knowledge. It believed for what they are offered, they were conclusive in favor of the defendants. There were something like a dozen witnesses. The remains of the machine existed, and a so- called reproduction made in conformity with those remains, so far as they existed, with the missing parts supplied from the memory of the witnesses, was brought into court, and sewed. Judge Spt‘ague had presented to him very much such a question as this case would have presented if we had not laid before the Court the depositions of filty persons, in a position to have known of this machine if it ex- isted at Drawbaugh’s shop, and who have sworn that such a thing was not there, and if we had not produced the other documentary evidence in the nature of disclaimers and statements by Drawbaugh in 1874 and 1878 and 1879, both before and after the date of the Bell patent, and had not proved by tests made in the case that the so- called reptodnct ions would not talk. Judge Spraguc was much pressed with the question what right he had to disregard the solemn oaths of a dozen witnesses, uncoutra- dictcd, most of them unimpeachcd, simply because the Court thought this story improbable. Judge Sprague answered it by reversing the question. He put it in this way: if Hunt had had a practically suc— cessful sewing machine, would his after history and the after history of that machine have been what it has been? He said that this con- duct of the party, touching which there could he no serious contro- versy, was of the highest importance in weighing the evidence where there was a controversy as to what took place many years ago, de— pendent simply in many instances on the memory of witnesses. He began by stating one fact, which was. that the world had obtained the sewing machine from Mr. Howe and from no one else. To support the allegations about the old Hunt machine, there was, he said, first, the evidence of its product, —— what work the machine did ; then there was the evidence of the recollection of witnesses of what the marhine was; finally, there was the evidence derived from the remains of the machine produced, examined by experts, and in the sense which we have stated, reconstructed. Certainly, said he, THE PROOF REQUIRED.—THE SEWING-MACHINE CASES. 109 that evidence would be entitled to great weight and consideration standing by itself; but it is encountered by certain facts, indispu- table, unquestionable, which are so entirely inconsistent with some parts of the testimony, that we are called upon to determine uhich shall yield. In considering the work done, Judge Sprague referred to a large number of witnesses, ten or twelve, who saw the work; and he speaks particularly of the Johnson family, father, mother, tWo daughters, and a son, of Whom he says, “ His testimony is of great importance; it is new and unquestioned.” They showed that Hunt, boarding in that family, brought a machine to the house to exhibit it as a matter of experiment and curiosity, and there sewed some cot- ton cloth, and they described it as having done excellent Work. Still, they are speaking of an event eighteen years before they testi- fied, and are called upon to state what impression it made on them at the time. “ Well, if it sewed at all it would be strange if it did not made a remarkable impression upon them.” It was entirely new ; the operation of the needle and the shuttle was new to them. The work then done was never used for any purpose whatever; it was never appropriated to any practical use, never designed for any practical use; it was merely an experiment to show them what the machine would do, and there it ended; and their attention was never called to it afterwards for eighteen years. Then Johnson remem— bered that he and Hunt, while experimenting, made certain canvas tubes which were afterwards applied to one of the uses of the shop. The machine was then carried to New York. "It was seen by various persons there and its work examined. Some describe it as sewing well; but in no single instance was the work done for use of any name or deseription, and in no single in~ stance was the work done ever put to any use whatever. This machine was never used for any purpose whatever, nor was any per— son ever kuown to seek for it, or for its product, to be appr :priated to any use whatever. Now, it is a little remarkable that a perfect sewing machineksuch as described by the witnesses as producing beautiful Work—strong work, as some of them say, a machine perfected, and, as some of the experts say, better than HoWe’s ; and, one of them says, a machine in some respects better than any machine he had ever seen; yet never proluced Work that anybody ever used for any purpose whatever, in the city of New York, or ever sought 110 BRIEF FOR COMPLAINANTS ON FINAL HEARING. to use for any purpose whatever; and that it was laid aside for years without producing either Work or propagating itselt'in other machines ever after. That is a phenomenon that requires to be accounted for. . . . “ How does it happen that the mother and daughter, ifit produced such work, did not desire their brother to get one for their own use? The manufacturer was a person in their own family, yet they nt-Ver expressed a wish for one. There was Arrowsmith, who had the ownership of it; there. was Adoniram Hunt, both in Baltimore; but nobody there, or anywhere else, attempted to obtain, or expressed a desire to obtain the use of that machine for any practical put-pese whatever.” Judge Sprague added, that after a great invention has become known to the public, the mind is very apt to blend a subsequent with a prior recollection. He discussed the ditferent witnesses who as- sumed to desctibe the machine, the parts of which remained. He said that up« n the essential question the women who saw it, though they might remember some of the principal parts, — the shuttle or needle, —could not he witnesses of value, and that the only persons whose statements as to the character of the machine can he of any value whatever are those who were machinists, and who examined it as machinists. He commented upon the argument which had been urged, that the so—called reproduced machine sewed, and that it con- fo‘med to the parts which leinained and description given of the missing parts, but he said that after all that was not reliable proof. “ The reasoning of Cuvier, by which, from seeing a few bones, he could reconstruct the whole animal, proceeded upon the assumption that the animal was a perfect work, made by a Creator perfect in his operations; and if the animal was a perfect work, then he could see from its remains what must have been necessary to make that perfect work. But that would be assumingr the point in controversy here. “The experts say that several parts of the old machine are the same as those parts in the new. Undoubtedly, as fa' as these parts go, they are the same as in the new machine. But how is it with those parts that are not in the old machine? These experts cannot say, reasoning by analogy, except upon the assumption that it was a per- fect sewing machine.” These old parts may he “the imperfect remains of an imperfect machine; that is all it proves itself to have been necessarily.” “Then, on the other hand, there are certain great facts which I must advert to new. This invention was appreciated by Mr. Walter THE KIND OF PROOF REQUIRED.—TIIE SEWING-MACHINE CASES. 111 Hunt himself and by Mr. Arrowsmith, to whom he transferred it. to be a matter of great importance. Arrowsmith says he had it in con- templation to get up a company, and if they could succeed in mak- ing the machine work, it would make as much money as he and his associates all would want. Mr. Hunt, “her. he transferred. as he did at first, half of the machine to Arrowsmith, stipulated for one half the profit to be derived from it. They then had hopes of per— fecting it; and it certainly needed no extravagant imagination in them to suppose that if they should succeed in perfecting a sewing machine which should be of practical utility, it would be of great value. They continued to experiment upon it, and endeavored to bring it to perfection.” Then Judge Sprague drew some conclusions from the remains themselves, and perceived from the inspection that they were parts n ,, .,:_.rh.\4 .11 n‘nnl1:I\n “ The evidence tending to show that the machine of Hunt’s was perfected may be divided into three classes. There is the evidence of its product,——what work the old machine did. In the second place, there is the evidence of the recollection of witnesses of what the machine was. And in the third place, there is the evidence de— rived from the remains of the old machine, produced here, and the opinion of experts, founded upon those remains, of what the machine originally was. These three classes of evidence the defendants have presented for the consideration of the Court; and certainly that evi- dence would be entitled to great weight and consideration, standing by itself. But it is encountered by certain facts, indisputable arid unquestionable, in this case, which are so entirely inconsistent with some parts of that testimony. that we are called upon to determine which shall yield.” — [[0206 v. Underwood, 1 Fish. 162, 165. and he'saidki— " ,, 7 , ,, " But the stubborn fact that Hunt’s machine would not work, and that Howe’s would, made the oaths of the witnesses as lnopcrative as the machine.” In the case at bar the Court has before it the positive fact, brought within the knowledge of the Court itself by the tests which We com— pelled the defendants to make in the progress of the cause, that at least two out Of the three pairs of machines, and, as we shall pres- ently show, the only twowhich there is even any substantial amount 110 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. to use for any purpose whatever; and that it was laid aside for years without producing either work or propagating itselt'in other machines ever utter. That is a phenomenon that requires to be accounted for. . . . " How does it happen that the mother and daughter, ifit produced surh work, did not desire their brother to get one for their own use? The manufacturer was a person in their own family, yet they never expressed a Wish for one. There was Arrowsmith, who had the ownership of it; there was Adoniram Hunt, both in Baltimore; but nobody there, or anywhere else, attempted to obtain, or expressed a desire to obtain the use of that machine for any practical purpose whatever.” Judge Sprague added, that after a great invention has become known to the public, the mind is very apt to blend a subsequent with a )rior rerollectio '- _ u , _ _____ 1"“ .u u. um um ulzwuluu are [[16 same as those parts in the new. Undoubtedly, as far as these parts go, they are the same as in the new machine. But how is it with those parts that are not in the old machine? These experts cannot say, reasoning by analogy, except upon the assumption that it was a per- feet sewing machine.” These old parts may be "the imperfect remains of an imperfect machine; that is all it proves itself to have been necessarily.” “Then, on the other hand, there are certain great facts which I must advert to now. This invention was appreciated by Mr. Walter THE KIND or PROOF REQUIRED.-— THE SEWING-MACHINE CASES. 111 Hunt himself and by Mr. Arrowsmith, to whom he transferred it, to be a matter of great importance. Arroxvsmith says he had it in con— templation to get up a company, and if they could succeed in mak- ing the machine work, it would make as much money as be and his associates all would want. Mr. Hunt, when he transferred, as he did at first, half of the machine to Arrowsmith, stipulated for one half the profit to be derived from it. They then had hopes of per— fecting it; and it certainly needed no extravagant imagination in them to suppose that if they should succeed in perfecting a sewing machine which should be of practical utility, it would be of great value. They continued to experiment upon it, and endeavored to bring it to perfection.” Then Judge Sprague drew some conclusions from the remains themselves, and perceived from the inspection that they were parts of an experimental machine. Throughout this acute analysis, although the case is in some re- spects stronger for the patentees, and in some respects stronger for the defendants, than the case at bar, it is plain that the weight of that decision is this: that in the face of the depositions of a large number of persons, ten or twelve, directly to the product of the machine, and undoubtedly more witnesses to the existence and gen— eral character of the machine, Judge Sprague found that the history and the conduct of the parties was such as to satisfy him, not that they had made a good machine and thrown it away, but that they had never made a good machine. > In referring to that case again in the subsequent case of Ely v. JlIonson cf: Brtmfield Mammtctmtny Company, 4 Fish. 79 (1860), Judge Spraguc adverted to the fact that there were plenty of witnesses who saw that machine work and Work well; he found, however, from its subsequent history that it did not work well, and he said :— “ But the stubborn fact that Hunt’s machine would not Work, and that Howe’s would, made the oaths of the witnesses as inoperative as the machine.” In the case at bar the Court has before it the positive fact, brought within the knowledge of the Court itself by the tests which we com- pelled the defendants to make in the progress of the cause, that at least two out Of the three pairs of machines, and, as we shall pres- ently show, the only twowhich there is even any substantial amount 112 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of evidence tending to show in existence before Mr. Bell’s patent, are absolutely inoperative, far more inoperative than Hunt’s machine was. And the Court will observe Judge Sprague’s acute remark, not merely that the inoperative character of the machine, when ascer- tained, disposed of the case, but it disposed of the witnesses. Johnson v. Root, 2 Fish. 292, 188 (1862). —The evidence to support Johnson’s claims was chiefly in all important respects from Johnson himself, but it was contradicted; and the question was, Whether thejnry had a right to find a verdict for him if they be— lieved him. On a motion to set aside a verdict in his favor, Judge Clitford held that the other facts of the case, especially the conduct of the claimant after the date of the alleged invention, gave rise to such inferences that the jury had no right to believe him. O’a/Loonv. Ring, 1 Fish. 408, 1 Cliflbrd, 592 (1859), is a case in which the two questions of law are somewhat mingled. But it is plain that What the Court felt was, that while Cnhoon made a ma— chine, the best proof that it was not a Sllccesztll machine was that he did not practically use it. Haj/den V. Sat-folk flicmufacturing Company, 4 Fish. 94 (1862). —-— Judge Sprague here applied the same doctrine which he had laid down in the sewing—machine case, and remarked, as he had remarked in one of the sewing—machine cases, that the character of the inven— tion might lead great additional weight to the inferences derived from the conduct of the parties. Perhaps this doctrine has never been much better stated than in the case of V‘Vhitney’s Cotton Gin, quoted in Matte V. Bennett, 2 Fish. 642 (opinion of Mr. Justice Wayne and Judge Gilchrist). Two witnesses swore that they had seen a machine substantially the same as the witness’s cotton gin. " The learned and lamented predecessor of one of us in this court, said in reply to that evidence, ‘There are circumstances within the knowledge of all mankind which prove the originality of this inven— tion more satisfactorz'ty/ to the mind than the direct tes/imong/ ofa lzost of witnesses. The cotton plant furnished clothing to mankind before the age of Herodotus. The green seed is a species more pro- ductive than the black, and by nature adapted to a much greater variety of climate, but by reason of strong adherence of the fibre to the seed, without the aid of some more powerful machine for separat— ing it than any formerly known to us, the cultivation of it could THE KIND OF PROOF REQUIRED.——CONDUCT AND CONSEQUENCES. 113 never have been made an object. The machine of which Mr. \Vhit— ney claims the inven‘iou so facilitates the preparation of this species for use that the cultivation of it has suddenly become an Object of infinitely greater importance than that of the other species ever can be. So it then is to be imagined that if this machine had been be- fore discovered the use of it would never have been lost or could have been confined to any tract of country left unexplored by com— mercial enterprise.’ “ The last sentence is peculiarly appropriate to \Voodworth’s plan- ing machine, for it now does in every part of the civilized world that which could not be done before with the same efficiency by machin- ery, and which is not here done in any degree by any machine which has been before the courts of the United States, unless by piracy of VVoodworth’s combination.” This doctrine was applied with vigor in the ditferent suits which grew up connected with the earlier inventions in reapers and mowers. McCormick v. Seymour, 3 Blatch. 213, Judge Nelson’s opinion. Seymour v. Osborne, 11 Wall. 516. Aultman v. Holley, 10 Fish. 534; 11 Blatch. 317, lVOODRUFF, J. The opposing machines set up were in almost every case full— sized machines, intended and adapted, so far as their size and general construction were concerned, to be put into the field and Operated by horses in the usual way. Most Of them were actually tried in the field, in one case, at least, cutting two acres; but the fact about all those which failed to overcome the contested patents was that, having been tried once or twice, or having been made and ex- hibited under circumstances such as would lead a successful machine to go into practical use, they never did go into practical use, and the Court in every case, sometimes applying one form of reasoning and sometimes another, was overcome by the fact that the patented ma- chine had found such a demand that it went into use as soon as made, and that the alleged anticipations, though there was as much need for them as there was for a patented machine afterwards, never went into use. « 00sz v. Mass. Arms. 00., 1 Fish. 116 (1851), VVOODBURY, J. -— Colt’s revolver patent of Feb. 25, 1836. " I do not propose to say anything more on this subject, except to have you put to your brethren, Mr. Foreman, when you return to your room, after reviewing the evidence, this general conslderatlon: 4553*: 114 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Did any of these guns succeed as the plaintiff’s did? If they did, it 'aises a strong presumption, in addition to any testimony, that they were similar. As I said about the French guns, did they operate as Colt’s did? as succeszully? did they continue to operate? If they were the same in principle, another question occurs in connection with that fact, and whit-h you will consider, and to which you will give its due weight, and no more: whether you have heard on the stand, in the progress of this case, or anywhere else, of the power and effectiveness of Smith’s rifle: in the world; have they crossed the Atlantic or penetrated the wilds of America?” Then came a sewing—machine case : —— Parlzam v. Am. Buttonhole 00., 4 Fish. 468 (1871), STRONG and MCKENNAN, JJ.—t)pinion by MCKENNAN, J. The patent was for an improvement in sewing machines. Prior inventions set up in defence. Paiham, the patentee, perfected his invention early in 1852. \Vorking drawings were then made and machines con- structed, which have been in successful and steady use for many years. The Fisher machine was made by Fisher for E. D. Leavitt in 1850, and some samples sewed on it, enough to show the working of the principle. It was delivered to \Vickersham as a model for a duplicate, and remained at the shop. It was never put to operative use except as stated. It was sold to M. & R. Leavitt in 1857. The Fisher-Wickersham machine was delivered to E. D. Leavitt in October, 1850, and he sewed two suits of boys’ clothes on it. It was sold to M. & R. Leavitt in’1857, and used as an exhibit in a lawsuit. “ Now what was the operative merit of these machines in the esti- mation of their inventor, makers, and Various owners, as indicated by their conduct, rather than by the less reliable guide of their, opinions? “ At the time when they were made the country had learned the great value of the sewing machine, and inventive skill was stimu~ lated to devise improvements in its mechanism, by which its effec— tiveness might be increased and popular favor attracted. " Is it, then, within the range of probability that the proprietors of an invention, from which, it" successful, large profits might flow, would so soon have cast it aside, if the trial to which it was subjected had proved its practical utility ? No further effort was made to test its merits, no patent was applied for. and it was only rescued from entire oblivion fora reason in no wise importing its capability of successful and useful operation. While, therefore, there has been no satisfactory trial of the cflieiency of these machines, and the per- sons interested in them have thus indicated so decided a judgment against their practical utility, we but enforce a logical sequence in THE KIND OF PROOF REQUIRED. —CONDUCT AND CONSEQUENCES. 115 assigning them to the category of unsuccessful and abandoned ex- periments. "But while these machines were thus thrown into disuse, they were carefully preserved by Martin and Rufus Leavitt, on account of their supposed effectiveness, as evidence to protect the infringe— ment of analogous inventions. “ This is the only value the Leavitts attached to them, and so they were kept from 1857 until they were used in a suit at Baltimore and now again in this case. How far they are available for that purpose here we are now for a moment to consider. " The time when Emswiler embodied his ideas in the concrete form of a machine adapted to actual use, the proofs leave us to fix by intermediate probabilities. That he was engaged in experiments for several years is sufficiently proved. but that his rspeculations had been reduced to practice and a machine had been prodUced’ by him before 1852, when Parham’s invention was complete, would be an unsafe deduction, from the testimony of the witnesses, whose state- ments are not consistent, and whose recollection of dates especially is necessarily indelinlte and unreliable after the lapse of eighteen years. The evidence must establish clearly the priority of a com- pleted ,and usetul machine over the complainant’s, or it is unavail- ing: doubt upon this point is to resolve it in the negative." Smith v. Fay, 6 Fish. 452 (1873), EMMONS, J.—" The presump- tion arising from silence, where there is so much interest to assert, an occasion to assert it, and the party intelligent, and the results certain, it the facts warranted it, has far more strength than any preponderance in number of witnesses and literal statements made by them in this case.” Brown v. Guilt], 23 \Vall. 181 (1874). —— Six machines said to be like the pat‘entee’s were built and tried. The Court held that the fact that they did not go into p‘aetical use was sufficient proof that they were not successful completed machines. _ Of course the disuse of a machine may be explained. In Hayden V. S'zy'folk JWanufiwturz'ng Company, 4 Fish. 94, and in Snow v. ‘Tapley, 13 0. Gr. 548 (1878), the Court held that a disuse during a greater or less time, owing to the fact that the product went out of fashion or there was no longer any commercial demand for it, if the disuse were proved to be due to the fact and not to any lack of efficiency in the machine, had no tendency to show that the machine was not efficient. But that is not the ease with the telephone. Goodyear v. Day, 2 Wall. Jr. C. C. 283 (1852). —The defend- ants produced a good deal of substantial testimony, undoubtedly not so strong as in this case; What controlled the mind and the will of the Court was the fact that when Goodyear had succeeded in 116 BRIEF FOR COMPLAINANTS ON FINAL HEARING. producing what he produced the public wanted it, but the community never wanted what his predecessors had produced, though it had been freely’exhibited to them. As Judge Grier tersely puts it, —— "Their experiments ended in discovering nothing, except, per- haps, that they had ruined themselves.” In Roberts v. Reed Torpedo 00., 3 Fish. 630 (1869). the same vigorous judge commented sharply on the fact that the claimant never got the invention into use, not because he concealed it. but because those who saw it did not want it, While those who saw the working of the patentee’s contrivance did want it. He stated, as matter proper for the Court to consider bearing upon the question of fact : — ” He applied on the lst of November, 1865, for a patent for sub— stantially the same combination of devices for machines contained in complainant’s patents. “0n the 15th of the same month the respondents formed them- selves into a company or corporation called Ul‘he Reed Torpedo Company,’ for the purpose of pirating the complainant’s invention and supporting the expense of litigation, and thus defrauding him of its fruits ” Roberts v. Sclzrez'ber, 18 O. G. (1880), STRONG, J. —The Court referred to the practical results which had first been obtained by the Community after the patentee had introduced his invention and said : ~— “ The cause that works such results cannot be the same as that ex- hibited in the abandoned experiments. Holding them up as antici- pations of the patented device is another illustration of what is very common, an attempt to defeat a meritorious patented invention by proof that something similar had been previously known, though it had never been perfected, and had never been any useful contribu- tion to human knowledge or convenience.” Smith v. Fay, 6 Fish. 446 (1873), EMMONS, J.——“ We do not in this overlook what some witnesses say about its efficiency; but it went out of use. Those who contrived and worked it did not under— stand complainant’s ideas. Holly did not understand it or patent it. The reason he assigns for not patenting it is absurd, in View of the law and his belief that he had invented so valuable a device. He was a patent man and knew his rights. He was a dealer in machines, and would have secured this improvement if it had been his. “That he patented is what he before made, after he had perfected it. It was not the device described by the witness. Mistakes in this regard are not only probable, but morally certain.” La Bow v. Haw/sins, 1 Bann. & Ard. 428 (1874), NIXON, J. (p. 436).—“ It is hardly necessary to refer to authority to show that THE KIND OF PROOF REQUIRED. —- CONDUCT AND RESULTS. 117 where an original inventor has perfected his improvement, whereby he puts the public into the possession of his invention, and has ob- tained his patent, its validity is not to be assailed, nor its 'alue destroyed, as was so well said in Hitchcock“ v. Tremaine, 9 Blatch. C. C. R. 550, by allowing infringers and rival inventors to set up crude and unsuceesstul experiments, as anticipating it, in describing which dim recollections are stimulated and the consciences of wit- nesses strained, in their attempts to clothe with living flesh what had (p. 437) always remained an inert and useless skeleton. Such cases as Ransom v. The Mayor of New Yorh‘, 1 Fish. 252; Cahoon v. Ring, Id. 397; Goody/ear v. Day, 2 \Vall, Jr., 283; and White V. Allen, 2 Fish. 453, exhibit the well-settled law on this subject.” Gottfried v. Philip Best Brewing 00., 5 Bann. & Ard. 4 (1879), (p. 25). —-"[t is so easy, after a new and useful invention has gone into existence and been brought into public use, especially if a char- acteristic of such invention is simplicity, for persons to come forward with claims that they invented the same thing many years before, and should, therefore. be esteemed the real and original inventors, that the Court should require convincing proof of the merit of such claims before overturning the patent. Especially so when it appears that the alleged earlier inventor has not apparently regarded his supposed invention of sufficient importance to push it upon public notice or to apply for a patent which would protect him in its exclu— sive use.” Putnam v. Hollander, 19 Blatch. 48, 6 Fed. Rep. 882, BLATCH— FORD, J. —The invention was for a very small matter in itself—a bottle stopper. There was not the slightest doubt that the thing was made and put upon a bottle in the beer saloon kept by the alleged prior inventor, and was to some extent actually used for a number of months. The witnesses said it ” worked good,” but no more were ever made. The evidence of half a dozen who swore positively that they saw it and described it month after month in actual use was characterized by the Court as wholly defective and insufficient, be- cause the claimant. was a mechanic provided with tools, and if the contrivance has practically worked as well as was alleged, the Court was of opinion that he would certainly have made some more and used them : — " However nearly Otto approximated to the end in View, he only made progress. The world derived no benefit from what he did. The recollection of it was stimulated by the success of De Quill- feldt’s invention. But for that Otto’s structure would have still been reposing in the old trunk beneath the stairs, forgotten and worthless.” 118 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. The depositions in that case were all one way, but history was the other way. THE DEFENDANTSS PROOF MUST REMOVE ALL DOUBTS, NOT RAISE THEM. The alleged prior invention must be established by proof so con- clusive as to be ” satisfactory,” certain, consistent in all its parts, free from doubt; a bare preponderance is not enough. Was/town v. Gould, 4 Robb. 206, 3 Story, 122 (1844), STORY, J. (p. 227).——” But as to this point the burden of proof rests upon the defendant. He must satisfy you beyond a reasonable doubt that there was a prior invention to Woodworth’s, because the plaintiff has a right to rest upon his patent for his invention till its Validity is overthrown. And consequently, if it should so hap- pen that your minds are led to a reasonable doubt on the question, inasmuch as it is incumbent on the defendant to satisfy you beyond that doubt, you will find for the plaintiff so far as this point is con- cerned.” [Wag/2'0 Ruflle Company v. 'Douglns, 2 Fish. 330 (1863), SHIP- MAN, J. (p. 534).-——“ The patent is prime faez'e evidence that he was the original and first inventor of this article. The defendants deny this, and allege that the same article was made before the plaintiffs or the patentee made it. The burden of the proof is on the defendant to show to your satisfaction that this article was made before the patentee made it. It is not enough that they raise a doubt in your minds on that point; they must satisfy you of the fact.” Roberls v. Dickey, 4 Fish. 532 (1871), STRONG, J. (p. 541).— “ The burden of proof is therefore upon him who denies the validity of the patent on the ground that the invention claimed by the pat- entee was not new, to establish his allegation by satisfactory and preponderatiug evidence, and this the defendant has attempted in the present case.” Smith v. Fay, 6 Fish. 446 (1873), EMMONs, J. (p. 452).— “ There may be cases where the proof is beyond criticism and with- out oonflict. In such cases this rule does not apply ; but if there is any doubt, a mere preponderance of evidence is not sufficient." Crouch v. Speer, 1 Bann. & Ard. 145 (1874), NIXON, J. (p. 148). —“ In considering the case, it should be remembered that the patent is primufcm'e evidence that the patentee was the original and first inventor. Any one who controverts this assumes the burden of proof, and undertakes to show affirmatively that there was a prior knowledge and use of the alleged invention, under such cir- THE PROOF MUST REMOVE ALL DOUBT. 119 cumstances as to give to the public the right of its continued use against the patentee. " This the defendants have failed to do; the evidence introduced by them is frequently contradicted, and is inconsistent with itself and many well-estab'ished facts.” (P. 154.) “ It is impossible to give much weight to testimony so inconsistent and contradictory. I have adverted to it at greater length than usual in such cases, to sliOw that there is ground for reasonable doubt in regard to its correctness. \Vhere such doubts exist, the complainants’ primafacie case, even if uncorroborated, must prevail.” Slillwcll (f: Bearce Mfg. Co. v. Cincinnati Gaslight (E 00796 0o. , 1 Bann. & Ard. 610 (1875), SWING, J. (t320).— —"Having thus shown what the evidence upon these points is, does it cstablis ii the fact that the patentee was not the first and original inventor ? The presumption of the law is, that he was the first and original inventor, and it casts upon the respondents, who deny it, to show by clear and satisfactory proof that he was not.” Homes v.A7112's1d1' quoted. Connncnting upon the evidcn1e addu1cd, the Court said 111 sub- stance that it appeared that the party stated that he made the inven- tion innucdiately upon his return with his family from the Centen— nial, in October, 1876. It turned out that his visit was in August, 1876. The Court did not look upon this as showin' that he made the invention earlier than he alleged, but as showing that he was not a re 1111 1le witness. Commenting upon that and other matters the Couit said (1). 69(5) :— “ These circumstances,taken in conne1tion with the testimony that the invention was conceived just before removing, and that the pat— ented pin was first 111111111t111tnred after the removal, lurnish very por- suasive evidence that the invention was in the fall of 1877 instead of the fall of 1876. The wiInCSscs were testifying to events which took place six or seven years before. They certainly are 111i.~taken 11s to some of them. “Thy may they not, without any wrongful i11- tent, have mistaken the year also? 124 BRIEF FOR COMPLAINANTS ON FINAL HEARING. " It is not thontrht necessary to enter upon a meie extended ievieW of the evidence, whi1h is very voluminous and is discussed with gm it care and elaboiation upon the briefs presented It is enough to say that no one of the principal circumstances relied on by the complainant is free from perplexity; either its own date is uncer— tain or there is difficulty in connecting it with the invention. It Would be idle to assert that all this does not create the doubt which the authiiritics hold must be absent from the mind of the Crui't. ” Patterson and another v. Duffy, 20 Fed Rep. 641., BRADLEY and MCKENN AN, JJ. —" (2.) It is alleged that Thomas Dufly first coii1eived the idea of the invention and6 that he deselibed it to one of the complainants and that thus they derived the idea tiom him. The burden of pioving this allegation is upon the defendant, and hence it must be borne by the exhibition of picponderating and sat— is st'a1toi'y evidence. The pioofs are conflicting, and, while We ire of the opinion that the S11iles incline in favor of the coniplainantsi can at least be sud “ith confidence that the defence is not clearly sustained. 'lhat 1s enough to iesolve the case in faVor of the com- plainants.” Wore-wick filtmuf’g 00. and (mot/161“ V. 0653/ of Bufalo and others, 20 Fed Rep. 125, COXE, J.—“ The main effort on the part of the defendants has been to show that Sulli 'an was not the original inventor. Here the burden is upon them to satisfy the Court beyond a reasonable doubt. A mere preponderance of evidence is not enough; the proof must be of such a convincing character that the Court can say without hesitancy that the allegations of the answer in that behalf are tiuc. Has such proof been olfercd? It is thought not. A fair conclusion to draw from the evidence is, that the de- icndants have succeeded only in casting «loubt upon the title of the patcntce. Instead of capturing the citadel, they have simply made a breach. True it is that before the patent Vague conceptions of the invention had eiiteied other minds; true it is that others had ap- proximated more or less closely to the successful realization; no one had quite reached the goal.” Gloucester Isinglass Glue Co. v. Brooks, 19 Fed. Rep. 426, NELSON, J. —— ” The evidence is conflicting on this point, but upon the whole it is satisfactmily proved that eveiything done by Stan- “1101] prior to the Rosgeis patent was. merely experimental, and that his experiments, such as they were, did not reach the perfected process of Rogers. Experienced ashe was in the manufacture of fish glue, he, must have appreciated the importance of 1i new method by which this waste material could be made available as glue stock in his business. The presumption is very strong that if he had actually succeeded in discovering such a method he would have made more use of the discovery than he is shown to have done.” THK KIND OF PROOF REQUIRED. —— DISCLOSURES AND CONDUCT. 125 Loo/tweed v. Cutter Tower 00., 18 Fed. Rep. 653, LOWELL, J. — " Holton testifies that he made the discovery by accident in M tl'Cil, 1872, which was more than two years before Lockwood’s applica- tion, and that he gave some samples to his friends; but Judge NIXON says he “gave the products of said experiments 10 his friends for trial and approval’; and this seems to us to be the fact. 'l‘ne use was experimental. Besides, it is far from clear that tho~c samples were given in 1872. In the matter of dates his witnesses are vague. We conclude, therefore, that Lockwood is entitled to a. decree.” Value of various [finds ofProof. —-The courts from time to time have laid down rules about the value of various kinds of proof and about the inferences to be drawn against the partyen whom the burden rests from the failure to produce, or account for the absence of, proof or witnesses likely to establish or know about the alleged fact, if true. Atlantic Works v. Brady, 107 U. S. 192 (1882), BRADLEY, J. (p. 203). ——~ " But if a different conclusion could be reached, to our minds it is as certain as any fact depending on conflictingr testimony can be, that Brady derived the ideas embraced in his patent from Gen. McAlestcr, the government oflicer who in 1866 and 1667 had charge of the improvements at the mouth of the Mississippi River, and that he never conceived those ideas till they were com- municated and explained to him by Gen. McAlester during the tit- ting up of the eW'iggins Ferry ’ at New Orleans and during the pro- gress of her operations at the Southwest Pass. It is proved by overwhelming evidence that during the whole period of her titling up, and until it was developed by her Working on the bar, that she was incapable of performing the work required of her at that place, that Brady regarded and spoke of Bishop’s plan as the best possible plan that could be devised, and that, although deeply interested in the success of the Operations, he never alluded to or hinted at any plan of his own devising dill'erent from it. His whole Conduct for months, as well as his total silence on the subject of any prior in- vention made by himself in all his intercourse with his associates in the contract, with the government otliccrs in charge, and with the superintendents and owners of the foundry where the “\Viggins Ferry’ was fitted up, is the strongest possible proof that no such invention as he claims had been projected by him. The witnesses who speak of his conversations and sketches in December, 1865, and early in 1866, as communicated to them with the utmost free- dom, with no apparent object, so far as they were concerned, must either be mistaken as to the time, or as to the devices described. Interested as he is in the result of the suit, his own testimony can— not be allowed to prevail against a Course of conduct so utterly at variance with it. It may be true; but we cannot give it q/ect 12G BRIEF FOR COMPLAINANTs ON FINAL HEARING. against what he himself did, and did not do, without disregarding the ordinary laws that govern human conduct.” Woodman v. Stimpson, 3 Fish. 98 (1860'), LOWELL, J. —" Now there has been a good deal of controversy upon that matter of date. The defendant insists that he has shown, with reasonable certainty, that it was six weeks or two months after August, 1860 ; the plaintiff says that on the evidence it was probably 1861. The detendants’ witnesses support their views of the date by reference to certain events, and you will remember what those events Were, and how likely they are to enable them to fix one year rathtr than another. The value of those aids to recollection depends upon two or three circumstances; on the importance of the event itself, primarily, and next on t/tecloseness Of’lts connection or association with the fact it is adduced to support. If Mr. Perkins tells you, ‘I enlisted at such a time, and I did this job immediately before I Went’ (p. 111), there is a natural connection between the events, and he would be likely to remember them. If he went to the war, and knew that he did his job just before he went, he would be pretty likely to remember it. if he had not been to the war, and had been doing jobs for the defendant all along, it would be difficult for him to recollect in what year he did do it. You ask a farmer in what year he saw a new plough which his neighbor was using, but which he did not think much of, and which he did not think worth while to buy. His neighbor is dead now, and you want to know when that plough was first used. Well, he thinks it was the year he had a certain field sowed with rye. His wife thinks it was the year he had it sowed with barb-y. His head man thinks it was the year he had it sowed with clover. They talk it over and finally settle that it was the barley year; they do not recollect the time, but it is the best that they *an do, and you have to take it with that qualification.” Woodv. Cleveland Rolling Mill 00., 4 Fish. 5. 0 (1871), S\VAYNE, J. —“Ratclifl himself wasat hand when the testimony upon the sub— ject was taken. He was not Called ; why not? This is unexplained.” “It is not shown by any testimony in the case that these ideas were not original with Kenyon, nor that, until after he made his first model, they ever existed in the mind of any other person. "In the fossils of geology, belonging to certain classes of animals, regular gradations from a low form of organism to a much higher one are found to exist. The contrast between the highest and low— est is very striking. The same thing takes place in the progress of invention. Models and machines in the same series, upon inspec— tion, not unlrequently exhibit curious points of analogy to such fos- sils. Sometimes one will be found to reach almost the highest point afterward attained, but to fall short of it. " The difference is that betheen success and failure. “When a great success is achieved in the field of mechanical in— vention, and the higher organism is protected by a patent, it is THE KIND OF PROOF REQUIRED.—-CONDUCT. 127 almost certain that invasions will follow, as there exists the relation of canse and efl‘cct. Such is the voice of universal experience. “ When the infringer is called to account, one of two defences is usually set up, and frequet tly both. First, that the invention in one of the lower grades is substantially the same with that of the pat— entee. The confidence of the attacking witnesses is often in propor— tion to the distance in time that one is removed from the other. "Their imagination is wrought upon by the influences to which their minds are sttl‘)jccted, and beguiles their memory. " thn the defence is made, it is the duty of courts and juries to give it effect. But such testimony should be weighed with care, and the defence allowed to prevail only where the evidence is such as to leave no roomfor a reasonable doubt upon [/26 subject.” Crouch v. Speer, l Bann. & Ard. 145 (1874), NIXON, J. —“ It is impossible to give much weight to testimony so inconsistent and con- tratlictory. I have adverted to it at greater length than usual in such cases, to show that there is ground for reasonable doubt in re- gard to its correctness. Where such doubt exists, the complainant’s primafl/cz'e ease, even if uncorroborated, tnust prevail.” Homes v. Antisdel, 2 Bann. &Ard. 10 (1875), LONGYEAR, J.— "No advertising hotel register book purporting to antedate com- plainant’s invention was put in evidence. Such a book (1). 12), duly verified, would be the best evidence possible. Each page would be an intelligent speaking, unimpeachable witness to its own chronology, and the hook itselt‘the best evidence of the date ot'its use. The case as left to stand exclusively upon the recollections of witnesses. and at a distance in time from eight to twenty years, and unaided in any single instance by any eontcmporaneons memorandum or writing whatever. I shall recur to this peculiar aspect of the case in another part of this opinion. " Another conside‘ation, and to which allusion has already been made, is, that a mere, matter of dates is left to rest wholly upon the unaided memory of witnesses, who for the tnost part had no interest or motive in regard to the fact to impress their memory at a dis- tance of time from eight to twenty years, and involving in most in- stances a difference of only one, two or three years, whether it was before or after the date in question. A remark by Mr. Justice Swayne, in his opinion in the case of Wood 2;. Cleveland Rolling Mill Co., 4 Fish. 559, is quite applicable here. In speaking of the proofrcquired to sustain the defence of want of novelty, and whice he speaks of as a defence usually set up in patent cases, he says: i The confidence of the attacking witnesses is only in proportion to the distance in time that one is removed from the other. Their imagination is wrought upon by the influence to which their minds are subjected, and be- guiles their memory.’ When we add to this the fact that in every instance defendant’s testimony as to prior use, weak as it is when standing alone, was contradicted by testimony entitled to equal cou- 128 BRIEF FOR COMPLAINANTS ON FINAL HEARING. sideration in every respect, there is really nothing left to sustain the defence. The rule of presumptious that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, recognized by the Supreme Court in Stitt v. Huide- kopers, 17 Wall, 384, insisted on by the defendant’s counsel, is, of course, recognized by this Court as binding upon it in cases to which it applies; but in this case I think it has no application. This is quite apparent when we look at the reason for the rule, as stated by the Supreme Court in the case last cited, which is as fol— lows: ‘Because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed.’ ” The conflict of testimony is not whether there was or was not a register or book of some kind used at each of the hotels in question during the periods of time covered by defendant’s testimony, for the witnesses on both sides are all agreed that, there Vas; neither is it, as to some of the places, as at Sturgis and Dexter, that there was or was not an advertising register used at seine time by the person named in a hotel kept by him, {’0' as to that the witnesses are all agreed that there was. The conflict is simply as to the description or kind of register so in use at such prior periods of time; and in respect to Sturgis and Dexter, as to the time when they saw an ad- vertising register in use there in a hotel kept by the persons named, whether in 1867 or from one to three years earlier. One set of wit- nesses testifies in the one case that the register so used was an ad- vertising register, and in the other case that it was at an earlier date the advertising register was used; and the other set describes the former as a plain register, and that the latter was used at the later date. Each set testifies to an attimativo equally with the other, and neither has any advantage over the other, under the rule laid down in Still 7). Huidekopers.” Judson v. Bradford, 3 Bann. & Ard. 539 (1878), CLIFFORD, J. — “ Two well-founded objections to the reliability of the witness exist, viz.: (1) That the reasons given by the witness for recollecting the date are unsatisfactory and insufficient. (2) That the testimony, if true, is not sufficient to establish the defence, as it fails to show that the exhibit was ever put in practical use, or that any one except the witness had the required knowledge of its existence.” Willett v. Fister, 18 \Vallace, 91 (1873), STRONG, J. (p.97).— " There is nothing in regard to which a Witness is more likely to be mistaken than in fixing the date at which a transaction long past took place.” See also the sewing-machine cases and others, supra. 1mm of the failure of these defendants to produce the most per- suasive evidence the nature of the case admits of. FAILURE 1'0 PRODUCE THE BEST PROOF Is FATAL. 129 The courts attach great importance to the failure of the party on Whom the burden rests to produce the best qualified witnesses. The rule is well stated by Lord Mansfield, as follows : ~— Smut/1v. Whitman, 6 Allen (Mass.), p. 564. ~—"The fact that the claimant did not testify at the t1'1itl, 1101' ctll his assignors to testify, concerning the assignments, W111ranted the jury to form a judgment unfavorable to his claim. eIt 2's certainly ct 212a9321n,’sct1/8 Lord M.111sfield,’thatthe evidence is to be weighed accordmg to the proof whvch it was 2'11. the power of one side to have produced and in the power of the other to have contradicted.’ Cowp. 65. See also Whitney V. Bag/Icy, 4 All ,n, 173.” Clifton 17. United States, 4 How. 242, NELSON, J. : " The government undertook to prove that the claimant, Clifton, had 1111— dervalued goods in the invoice, and introduced expert evidence on this point, and then called upon the claimant to produce his books, papers and correspondence concerning the importitions. Neither were produced, nor any account attempted to be given for the 11011— production. Upon this the government rested, and the claimant went into his defence, relying wholly 011 expert evidence. The Court below instructed the jury,— “ ‘That there was evidence that one of the persons by Whom a p01— tion of the goods in controversy appea1ed to have been invoiced to the claimants was within the reach of a subpoena,‘ and it was reason- able to presume that it was in the claimant’s power to have produced evidence of the real state of his accounts and transactions with all the parties in England from whom the goods 111d been received, as the correspondence showed that two ye 11s ago his counsel had ad— vised him to prooure p1oof on this subject, which had not been pro- duced; and the claimant knew from whom he had bought the goods, and what their actual cost was, and yet he had not produced the evi— dence, nor accounted for its absence; that to withhold testimony which was in the powe1 of a party to produce in order to rebut a charge against him where it was not supplied by equivalent testi- mony, 111i0ht be as fatal as positive testim my in support or confirnm- tion of the charge , that if the claimants had with held proof which his accounts and tD' ansactions with these paities atlmded, it might be presumed that if produced they would have operated unfavorably to his case.’ ” Exception taken to this. The Supreme Court say: — “ Probable cause for the prosecution having been thus sufficiently established, the claimant went into his defence; and, instead of fur- nishing evidence of the prices actually paid by him to the houses abroad from whom the goods wereapurcl‘iased, as he might have done, either by executing a commission to take their testimony, or by persons concerned in making the purchases, or by the production 130 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of the books of account that had been called for. as the call afforded him an opportunity to put them in evidence, he placed the defence altogether upon the judgment and opinions of merchants and other persons acquainted with this description of goods, as to the value and cost of the article in the home market, tending thereby to confirm and support the correctness of the valuations as fixed in the in— votces. . . . “ The instructions had a direct reference to, and are to be con- strued as intending to bear upon, the matters of defence, probable cause having been shown; and upon the nature and species of the evidence relied on by the claimant in support of it; and in this aspect of the case, at least without. new reterring to any other, we think they were not only quite pet tiueut to the question in hand, but founded upon the well-established rules and principles of evidence. " The prosecution inVolved in its result, not only the forfeiture of a considerable amount of property, but also the character of the claimant, both as a merchant and an individual. He was charged with a deliberate and systematic violation of the revenue laWs of the country, by means of frauds and petjnries; and the Court, as was its province, uud~r the 71st section ofthe act of 1799, had pronounced the proof sufficient to establish the offence, unless explained and re— butth by opposing evidence. " Under these circumstances, the claimant was called upon by the strongest considerations, personal and legal, if innocent, to bring to the support of his defence the very best evidence that was in his possession, or under hi~~ control. This evidence was certainly with~ in his reach, and probably in his counting—room, namely, the proof of the actual cost of the goods at the place of exportation. He not only neglected to furnish it, and contented himself with the weaker evidence, but even refused to furnish it on the call of the govern- ment; leaving, therefdre. the obvious presumption to be turned against him, that the highest and best evidence going to the reality and truth of the transaction would not be favorable to the defence. “One of the general rules of evidence, of universal application, is, that the best evidence of disputed facts must be produced of which the nature of the case will admit. This rule, speaking tech— nically, applies only to the distinction between primary and second- ary evidence; but the reason aesigued for the application of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between the higher and inferior degree of proof, speaking in a more general and enlarged sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not the courts require the strongest possible assurance of the mat— ters in question, but that no evidence shall be admitted, which, from the nature of the case, suppOsses still greater evidence behind in the party’s possession or power; because the absence of the pri- mary evidence raises a presumption that, if produced, it would give FAILURE TO PRODUCE THE BEST PROOF 1s FATAL. 131 a complexion to the case at least unfavorable, if not directly adverse to the interest of the party. . . . " For a like reason, even in cases where the higher and inferior testimony cannot be resolved into primary and secondary evidence, technically, so as to compel the production of the higher; and the inferior is, therefore, admissible and competent without first account— ing for the other. The same presumption exists in full force and effect against the party withholding the better evidence; especially when it appears, or has been shown to he in his possession or power, and must and should, in all cases, exercise no inconsiderahle influ— ence in assigning t0 the inferior proof the degree Of credit to which it is rightfully entitled. " It is well observed by Mr. Evans (12 Evans’s Pothier, 149) in substance, that if the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the Court and jury that proof of a more direct and explicit character was within the power of the party, the same caution which rejects the second- ary evidence will anmkcn distrust and suspici n of the weake‘ and less satisfactory; and that it maybe well presumed, if the more perfect exposition had been given, it would have laid open deficien— cies and objections which the more obscure and uncertain testimony was intended to Conceal. " We will only add, that practical illustrations of this application of the rule are witnessed daily in the administration of justice in criminal cases, and are too familiar to every lawyer to require a more particular reference. “We are satisfied, therefore, that no error was committed by the Court below in giving the instruction first excepted to.” Gay v. Patfpart, 106 Ur S. 679 (1882), MILLER, J. (p. 685).— "Its execution was proved shortly after the date it bears, before a justice ofthc peace, in accordance with the laws of the State of New York, where Flaglor then resided. The certificate of this fact, with that of the clerk of the proper court, was such that by the laws Of Illinois the assignment was admitted to record in the county of Cook, of that State, and is primafacz'e evidence of its execution by Flaglor. \Ylien this assignment and certificate were produced in evidence, the onus of proving that it was not the (p. 686) act and deed of Flaglor devolved upon the appellants. The Witness was livingr at the time that the deposition of the appellee was taken in New York to prove the execution of the paper. He was competent to prove what was done in regard to its execution. and the fact that the appellants, with a knowledge of the case made by the positive testimony of Catharine Reid and the certificate, did not call the man whose name was afixed to the paper as a subscribing witnch, leaves but little doubt that it could not be thus succeszully impeached.” The “James Martin,” 5 Hughes, 448 (1883), HUGHES, J. (p. 455). ~— "‘ Naturally this Court has a right to expect that all the crew 132 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of the ‘ Martin’ Would have been examined in such a case as this. Yet only three of them have been examined; and the failure to ex- amine the rest is wholly unaccounted for, although it is in proof that one of those others was for some timein a hospital at Norfolk. Such an emission, unaccounted for in cases like this, has always been looked upon by admiralty courts as prejudicial to the case of the Vessel charged to be at fault. Moreover, the witnessess actually examined are those least disinterested in the suit.” Nat. Oar. Brake S/(OQ 00. v. Terre [feats Car (6 Mfg. 00., 19 Fed. Rep. 514. — ” Action for damages for infringement. Plaintiff proved the Whole number of brakes made by defendant, and con- tended that the burden lay on defendant to show how many of them infringed, and that unless such proof was made the jury should pre- sume that they all infringed.” Woods, D. J., in charging the jury, said there was no room for this presumption, unless the jury thought defendant was trying to conceal the truth (p. 520). <‘If a party shows an unwillingness to let the truth out, and keeps back facts, and the means of getting at facts in his power, then the jury is war- ranted in d'awing the strongest possible inferences which may be drawn from the evidence actually given in favor of the other party.” Standard Measuring Mac/zine 00. v. Teague et clan, 15 Fed. Rep. 390, LOWELL and GRAY, JJ. —” The only evidence in the case is that of the exports on each side, and admissions of the defendants as to certain machines. It appears from the absence of testimony which Would not fail to be produced, if it could be found, that this invention was wholly new, and that for the first time the superficial area of a side of leather or other thin article was ascertained by a Weighing machine, through the ingenious conception and contrivance of representing a given area by a given weight.” Commonwealth v. Webster, 5 Cash. (Mass.), at p. 316, per SHAW, C. J. — “ Where, for instance, probable proof is brought of a state of facts tending to criminate the accused, the absence of evidence tending to a contrary conclusion is to be considered, though not alone entitled to much weight; because the burden of proof lies on the accuser to make out the Whole case by substantive evidence. But when pretty stringent proof of circumstances is produced tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circum- stances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innoeenre, and he fails to offer such proof, the natural conclusion is, that the proof, if produced, instead of rebutting, would tend to sustain the charge.” 310.951.014.75 v. O’Neil, 113 Mass. 92, GRAY, o. J.—Bill to enforce a resulting trust. Plaintiff’s intestate bought the land conveyed to defendant, which was paid for partly by money of the THE INSTRUMENTS PRODUCED AND WHAT THEY PROVE. 133 intestate, hut chiefly by money lent him by defendant, who took title in his own name for security. The master reported " the dc— fendant was present during the hearing before me, but did not offer to testify, which fact I report at request of complainant’s coun— sel.” GRAY, C. J., says, i“ In equity, as at law, the omission of a party to testify in control or explanation of testimony given by others in his presence is a proper subject of consideration.” Decree for plaintiff. Cheney v. Gleason, 125 Mass. 166. ——Bill in equity alleging that by the fraud of the defendants a deed was procured from plaintiff to one of the defendants, who sold it to a bona fide purchaser and took a mortgage back. Prayer for assignment of the mortgage and for damages. The Court say (1). 176) :— " The request for instruction that there was no ground for pre- sumption against the defendants from the fact that they produced no witnesses could not be properly given. The neglect of a party to produce evidence which is in his own power is a fact to be consid- ered by the jury in connection with all the other facts; and in a case of fraud, the parties to which are within reach as witnesses, may be of great weight against him.” THE INSTRUMENTS PRODUCED AND WHAT THEY PROVE. Briefly stated, the value of these exhibits in this case is as follows: They produce certain instruments alleged to have been made before the date of the Bell patent. As it takes two instruments to make an apparatus, the first five could not have made three independent sets. It is alleged, however, that F (the tumbler) was the only variable—resistance transmitter before 1876; and that it was coupled with various receivers as F B, ———F C, — F I, — F A; in all these F was the controlling instrument. These, with C I, make up the various couples alleged. Inspection of these instruments shows that those alleged to have been before 1875 are so rude as to prove themselves to have been mere experimental instruments with per- haps the exception of the receiver A. It is certain from the appear- ance of those early instruments that very little time could have been devoted to their construction, and that Drawhaugh, who is proved to have been a very skilful and neat workman, would not have rested a week with any of them, if he had get results which justified a day’s work in making well-constructed instruments, even if the- 134 BRIEF FOR COMPLAINANTS ON FINAL HEARING. principles were not changed. Yet the pretence is that those five early instruments were all the complete instruments that he made through seven years, and that the construction of those occupied absolutely most of his time through the Whole of these seven years. On their face these instruments are too incomplete to sustain such a defence. There is no proof of the real identity nor of the original structure and mode of operation of these instruments except from the claimant Drawbaugh himself. The operative parts of most of them are gone. The nature of the non—ex1sting parts and the identity of the better instruments rest purelylin memory. No Witness produced for the defence ever understood or was capable of understanding the mode of operation or even the structure of any of those instruments, with perhaps one doubtful exception of the claimant’s nephew about one instrument. WVhat the missing parts were and whether such of the instruments as are now in comparatively good condition were origi- nally made as they now are depends entirely upon. the testimony of the interested claimant alone. The instruments do not tell their own dates, and there is no proof when any of the materials for any of them were procured. But their appearance shows that those alleged to be later must have been considerably better than those alleged to be old; and Drawbangh ex- pressly so testified. The better ones would necessarily supersede the earlier and Worse ones. Indeed he expressly so testifies. Proof, therefore, of the habitual use of the alleged earlier and worse instruments at or after the time of the Bell patent is the strong st possible proof that the better ones did not then exist. Such preof, together with many details confirming it, is found in the dc- fendants’ own record. Alarge number of witnesses, testifying from mere memory, and all of them men easily deceived or deluded, assert that the earlier instru- ments gave admirable speech. Drawbaugh himself so swears. The defendants evidently felt that no recollections would satisfy the Court without alleging an answer from the instruments. So What they called reproductions of the structures were made by Drawbaugh in his own shop, with the missing parts supplied from memory; and they alleged that these so-called reproductions were practical oper- THE INSTRUMENTS DESTROY THE WITNESSES. 135 ative speaking instruments. \Ve had sufficient reason for disbeliev- ing that story, and we compelled the defendants to test the instru- ments by their operators, at their own time, at a place and under conditions selected by them, but in the presence of witnesses. The , so-called reproductions were in every respect either admitted or proved to be marked improvements on the originals sworn to by their Witnesses. The conditions under which they were tried and used were very much more favorable to success than those available at Drawbaugh’s shop at the times testified to. With all these ad— vantages and improvements, the tests of these instruments made in New York, and occupying, with some other tests, three days, proved that it was physically impossible for any of the witnesses at Draw- baugh’s shop to have heard speech through the instruments, even if they had originally been constructed as Drawbaugh says they were constructed. From this should be excepted the instruments D and E. The case, therefore, must rest upon the date of these two in- struments alone. But this is not the only consequence of those tests. In Ely v. Monson Mfg. Co., 4 Fish. 79 (1860), SPRAGUE, J., said: " The stub- born faet that Hunt’s machine would not work, and that Howe’s would, made the oaths of the witnesses as inopc 'ative as the ma- chine.” lVitnesses who swear that ten years ago they heard per- fectly good speech through these instruments cannot prove any case. Details oft/Le tnstrzunents and remains alleged and their value as proof. It has appeared that Drawbaugh had, very recently, at least, a box full of papers, letters, sketches and some memorandum books, but the defendants have not ofi‘ered a single sketch or paper writing which in any way connects him with the telephone. No paper exists which refers to him in connection with the telephone until in 1878, after Mr. Bell’s invention had gone into extensive and profit— able use, some iieivspapcr and other publications referred to Draw- baugh in substance as an experimenter who was trying to improve existing instruments, and in one case in terms as a man who had long ago experimented, but had absolutelyfltiled to transmit speech. Drawbaugh preludes with a sketch made from memory while testifying; nothing here showu exists or is testified to : — BRIEF FOR COMPLAINANTS ON FINAL HEARING. Dale alleged. —The period to be examined begins at a very early date. Drawbaugh (in an answer which indeed carries its OWII condemnation on its face) says that in 1861, meeting some unproduced and unnamed persons (defts, ii, 783, ans. 33) : “I talked to them about a machine I was working on then, I termed it a machine for transmitting sound ; . . . I don’t know that I was working upon the machine at. that time, but I had my mind employed upon it.” He adds that he does not know whether he expected to use elec- tricity then. Lory (defts, i, 235) says that in the fall of 1864 Drawbaugh told him that " he iwas about making a machine to talk through a distance of about twenty miles, and showed me a draft of it on paper. ” Drawbaugh (defts, ii, 235), without any real recollection, Wishes the Court to understand that this is true. He had a daughter Emma, born September, 1856, and now dead. He says that she talked to him through a talking machine when she was about six years Old (defts, ii, 782, 767). He testifies that he had an apparatus (drawn on p. 136, supra) before he took out his faucet patents, which were dated Nov. 20, 1866, and applied for Sept. 14, 1866. Snell (defts, iii, surbtl, 411) testifies that he actually heard words through a machine of Drawbaugh’s in the first half of 1867. J. A Smith (defta, i, 542 ; ii, 785) says that " early in the spring of 1867 ” Drawbaugh told him that he had talked through it. Draw- baugh swoars that he had such an apparatus then contained the in- vention in controversy. The alleged earliest pair produced (the Court will bear in mind that it takes two instruments to make a single apparatus) are the THE INSTRUMENTS 1‘ AND “ F REPRODUCED.” 137 remains which consist of a broken glass tumbler F and the remains which consist of the tin—can arrangement B. Exhibit F now consists of a broken glass tumbler, ablack walnut turned cap or mouthpiece, a rod running down through the mouth— piece, carrying a rough-shaped piece of tin about the size of a ll‘llf dollar, and another entirely de- tached piece of tin of about the same size and shape. ‘ It is alleged that a bladder was once stretched ‘ over the month of the tumbler, the detached tin . I plate connected with its centre by a stiff rod so as to bring it into the position arbitrarily shown for the upper plate in the drawing; that the plate carried F) one fourth Size. on the existing rod was put in to the position now shown in the drawing, " a box placed around it,” this " box ” filled with some powder until the powder touched the upper plate, and the whole connected in a clrcuit which included a battery and a receiver, and constituting a carbon powder variable-resistance transnitter. It now consists of a glass tumbler with the bottom broken off. A series of witnesses alternately swore the bottom off and on at inconsistent times. Draivbaugh (ans. 141, 142, defts, ii, 803) testified that it first had a bottom on, and that the bottom vas acci- dentally broken ofi'. He cannot remember, however, having more than one tumbler (defts, ii, 803). lV'itucsscs who allege that they saw it as early as 1869 allege that it then was broken; and one says that Drawbaugh told him he Inade it out of a broken tumbler. It is alleged to have had a membrane diaphragm. Drawbaugh says that at some time, which he does not state (ans. 128, p. 800), he used tin. He thinks it is not far from the time when he used it on C; this is inherently probable, but does not directly help the date. But every witness, with possibly one very vague ex- ception (Shettel, ans. 6, defts, i, 216), swears positively that the diaphragm was of bladder or the like. It now has a single rod to sustain the lower plate, and there is only one hole for a rod in the wooden cap (the other hole being for the electrical wire). Drawbaugh alleges that at some time not named he had a different lower plate with two rods and a cup and a lower and BRIEF FOR COMPLAINANTS ON FINAL HEARING. better cap; the whole, he says, constructed and ar— ranged like the alleged reproduction falsely marked "F reproduced.” (D, ans. 114—15, defts, ii, 798; ans. 656, p. 906.) But every Witness who refers to it positively identifies F, and no one refers to the other alleged form. This, according to Draw- baugh, was not an alteration of the old instrument. “F reproduced,” It was physically a second instrument, and the parts one fourth 5119’ preserved show that the operative parts of the alleged second could not have been used with the existing palts. Two rods never could have been used with the present cap piece, which is the only one produced, and is the one every witness (except Drawbaugh) has sworn to, because it has only one hole through which a rod could pass; the hole near the edge slants, and is fol‘ acouducting wire; it could not accommodate an up-aud-dowu rod. There are other difficulties. ' \Ve do not believe that the alleged second form existed at any time material in this case; the defendants’ proof is that it did not. Springer swears that he used F in 1876 (app. 54). Defendants’ expert, Mr. Benjamin, admits that the double rods are the best (defts, ii, 1252, 1255—6). . The alleged differences, if both forms are correctly described, are such that the form of the so-called " reproduction ” would be much better, and would make the difference between some intelligibility and none at all (app. 530). This is extremely important, and is considered on p. 175, infra. Exhibit B consists of a rough baseboard, on which is a tin can smeared with green pitint and partly lined with plaster of paris; it is attached to the board by a strap of tin, rough and uneven, as if it were a scrap picked up and used in a hurry without trimming; through each end of it a single tack is driven into the board. In front of this is a block of wood, which supports the remains of a small electro-magnet. Under the block is a bent strip of tin ad- justably fastened to the baseboard by a screw passing through a slot in the tin; there is a small hole in the rear end of this strip, and its front end is pointed, and is now bent up and presented oppo— site the middle of the tin can. THE INSTRUMENTS C AND "0 REPRODUCED.” B, one fourth size. It is alleged that the end of the tin can next the electro-magnet was formerly covered with a bladder. No such covering now exists, but the remains of a bladder with a binding string are seen along the edges of the can. It is also alleged that the bladder .carried an armature. One witness for the defence (G. W. Draw- baugh. app. 202) says that a thread or wire was attached to the bladder. The exhibit contains nothing of either. F and B are alleged to have been made in 1867 and considerably used as late as 1876. Both are of the crudest and rudest construction. Ear-piece of paper. Drawbangh says that he used several difi'erent magnets on it of different sizes at different times (defts, ii, 1039‘), and that he applied 140 BRIEF FOR COMPLAINANTS ON FINAL HEARING. to it " shortly after he first made the instrument” (ans. 1316, p. 1039) an ear piece of paper, but found no benefit from it. Exhibit C. The frame of C is very roughly made of a piece of old board. ‘The mouthpiece or ear piece is of black walnut, turned. C as it exists, one fourth size. It now has a diaphragm of German silver, to the centre of which is attached an iron armature. There is no magnet nor electro—mugnet to it. It is alleged to have been made in 1869—1870. Drawbaugh says that it once had a membrane diaphragm, a few fragments of which remain on a ring produced and said to have once formed part of the mouthpiece ; that the mouthpiece has been much altered ; and several witnesses say that it had an electro-magnet and permanent magnet, such as the defendants have placed in the exhibit made for the purposes of this case and arbitrarily styled " C reproduced.” “ C reproduced,” one fourth size. THE INSTRUMENTS I AND “I REPRODUCED.” 141 Exhibit l is alleged to be the next in order of time. I, when produced and sworn to by the first witnesses called, consisted of a box roughly turned out of black walnut, about four inches in diame- ter and about four inches deep. The interior works, consisting of a. diaphragm and magnets, have been added while the testimony has been in progress. mill ,' I as produced and first sworn to, I as reconstructed after it had been one fourth size. sworn to by some of the Witnesses, one fourth size. The diaphragm is new and supplied from recollection. The mag— net now in it was found in the garret some time after the defend— ants had produced the instrument in this cause; it is alleged to be the original magnet chiefly because it is of a size to go into the box; but the box is large enough for any ordinary sized magnet, which this is (defts, ii, 741, 819). C is alleged to have been made in 1869, and I about six months later (det‘ts, ii, 927, 815). There is very little testimony about I, and none about its internal construction, except from Drawbaugh, and from Holsinger, who says that he saw Drawbaugh " put something into it by which it was cal- culated to give or receive sound” (defts, i, 380) ; Holsinger did net know Diawbaugh until the fall of 1873. Drawbaugh’s story is that he changed all the inside parts, and particularly the magnets; that it originally had a simple electro— magnet, and that he took that out and put in another and smaller electro-magnet mounted on permament magnets. He says that this change greatly improved it; it Would. His language is (defts, ii, 818) :— "It was a better instrument; it answered better as a receiver, and it could be used as a transmitter; and I have used it as such.” 142 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. There are some very serious difficulties with this story, and one of them is that the appearance of the bottom of box I does not ex- hibit any indications that such magnets ever could have been placed there. Again, the box I is admirably adapted for a string telephone. The string or wire, fastened to the diaphragm, Would pass out through the hole in the centre of the bottom, and then the contri- vance could be, perhaps, fastened in the wall, and correspond to What several witnesses have mentioned. No other purpose for that hole can be conjectured. It is certain that it was neither made nor used for a screw to hold the magnet. A mechanic would at once have countersunk the hole to bury the screw head, and thus allow the instrument to rest flat on a table, which it cannot do now ; indeed, a screw could not have been put in and turned up hard enough to hold the heavy magnet inside without burying its own head; the Wood shows that this has never been done. Instrument A is a highly organized magneto receiver, but with a neutral magnet. The case is of black Walnut, nicely turned, and furnished with screw cups to attach the line wires to. The diaphragm is of black walnut veneerintr. It is a receiver only, and does not con- stitute a speaking telephone until a suit- able transmitter is provided and con— nected with it. It is alleged to have been made in the fall of 1874. The defence had D. W. Smith swear that he saw Drawbaugh making it in November, 1874 (defts, i, A’ one hmsue‘ 69, app. 25). They had U. R. Nichols swear that in January, 1875, Drawbaugh told him he had had it about Sixty days, though it afterwards appeared that this statement was made in 1878 (defts, i, 93, app. 28). In examining their ex- pert, the defendants’ counsel said (defts, ii, 1323) : — “Q. 133. Assume that Drawbaugh’s instrument A was con— structed in 1874, etc.” ' THE INSTRUMENTS, D AND E. 143 Exhibits D and E are a pair of magneto instruments. They are highly organized, enclosed in neatly turned black walnut cases, pro- E, one half size. D, one half size. Rear view of D. vided with iron diaphragms, short cores and coils, permanent mag- nets, and the flaring mouthpiece, very thin air space in front of diaphragm, with central opening universally used in all commercial instruments. In short, they contain nearly all of the most refined improvements of detail which long experience has put into the best. commercial instruments of to-day, though, owing chiefly to the smallness of the permanent magnets, as compared with the cores, they are rather feeble. ' They are now in working condition, with the exception of some accidents to E, some of which may have happened in the progress of the cause. They are not exact duplicates, but are almost so. E has its rear enclosed by a cover and so had D; Drawbaugh says it had, but the cover has been lost (ans. 247, defts, ii, 824). The defendants undertake to prove that they were made in Janu— ary and February, 1875. In examining Drawbaugh, the defendants’ counsel said (defts, ii, 1095) :— “ Q 1611. The little magneto machines D and E, if I understand you and other witnesses, were made about the time when the Axle Company commenced operations,” etc. Drawbaugh had not said so, but they tried to make him. Indeed, he expressly said that he dial not know in what year they were made (ans. 265, defts, ii, 827). The Axle Company began about March 1, 1875. 144 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. In examining their expert, the defendants’ counsel said (defts, ii, 1323) : — “ Q.134. Assuming that Drawbaugl’i’s instruments D and E were made in January and February, 1.875,” etc. We do not admit these dates for a moment. We insist that not only the general facts of the case but specific proofs entirely over- throw them, But we are now dealing with the story the Drawbaugh party tells. These are all the instruments alleged to have been made before the Bell patent. The defendants allege that Drawbaugh, having made admirable telephones before Mr. Bell’s patent, continued to invent additional improvements down to the time when this controversy began in July, 1880. To support that part of their story, they introduce the Exhibits L, M, G, O, H, J, N, Q, P, K, which they offer as made in the order named. If their record proves anything it proves that L, M, G, 0 were completed and used, and H was substantially completed] before Mr. Bell had been heard of. These five are highly organized carbon microphones, though they all have one defect, which renders them unfit’for public and general use. They have, of course, no direct bearing on the Bell patent, but they form an important part, and perhaps the most incredible part, of the defendants’ story. We therefore wish to have them considered in judging of that story, and haVe described them on p. 176, infra. It is enough to remark here that if the story is true, he had, before Mr. Bell was heard of, what may he called practical carbon microphones highly organized and carefully finished. The Value of the Instrument Exhibits as Proof—These exhibits prove neither their own identity nor their original structure. Nearly all the operative parts of F, B, C and I have gone. No witness produced ever knew or was capable of knowing the structure or modus opercmdi of any of them. All information as to what the missing parts were is got from Drawhaugh and from Drawhaugh alone. The real identity of A, D and E, which are now substan— tially in condition, rests on no higher proof; for no witness identifies them or ever knew enough to indentify them by more than their external appearance; the inside of each may have been changed half N0 REAL INDENTIFICATION BY THE WITNESSES. 145 a dozen times over. Indeed George Drawbaugh says of his uncle’s talking machines generally (defts, i, 632 x 91) z “ Some of those machines have been changed so often that one might think they were different machines.” This is not a matter of mere suggestion) or conjecture. Witness after witness has sworn that when, according to his story, he talked with F and B, or at times when F and B are alleged to have been in use, they were in the same condition as now; they now do not contain the operative parts. I hashad all its insides put into it since many depositions were taken; but the witnesses swore to it with equal glibness, and generally in the same terms before and after the change. The defendants try to make the Court believe that A has been changed in certain features which are patentable and are the mOst striking in appearance since the dates when some Witnesses say they saw it, and unreservedly swear to it. L and M were originally car- bon microphones; the microphone parts were taken out, and they are now simply magnetos. Many witnesses have sworn to them, but no one except the claimant knows of this change. Now when we come to the nice distinctions which separate a va- riable-resistance transmitter which will talk from One which will not yield intelligible sounds, or when we try to distinguish a circuit breaker which is not a speaking telephone from a microphone or con— tact preserving instrument which is, such testimony is worthless. The whole proof of the original structure and mode of operation of the instruments (whatever be their dates) rests on the testimony of the interested claimant alone. We do not forget that witnesses say that these instruments talked; and that, if true, would tend to confirm Drawbaugh. We shall presently find that his witnesses who allege speech are, as a class, discredited, and their testimony to that effect shown to be untrue. That is a separate matter. We are now considering what these exhibits, as structures, prove, and whether there is any reliable evidence even to their structural identity. But if identified at all, they are for the most part mere remains. In the Howe sewing-machine case "remains” and a so—called recon- structed machine were produced, and the reconstruction sewed in 146 BRIEF FOR COMPLAINANTS ON FINAL HEARING. open court. Judge Sprague pointed out the fallacy which lay at the bottom of the matter. Howe v. Underwood. 1 Fish. 162 (1854), SPRAGUE, J. —“ We come then to another part of the evidence, — these old remains. "These are very important, undoubtedly; for, when a new inven- tion is sought to be intercepted by a former one, the production of a former machine is, I will not say essential, but of very great impor— tance, showing that it does not rest merely in the recollection of wit- nesses that there was such a thing. These are the remains of a machine claimed to he invented by Mr. Hunt as a sewing machine, which was in the hands of Adoniram Hunt, and transferred to Ar- rowsmith, kept by him, and found by him, as he states, in 1851, in the rubbish of his workshop. They exhibit some of the instrumen- talities, but certainly to the eyes of those who are not experts, but few of the means, of forming a sewing machine; and to the eyes of the experts they present the same deficiency. One, at least, of the defendant's experts, when he was called upon on a former occasion, looked at them, and then testified that there was nothing there from which a sewing machine could be constructed. He says now that he has changed his mind, upon a more careful examination. At first View, then, they would present no satisfactory evidence of having been a. sewing machine. “ The reasoning of Cuvier, by which, from seeing a few bones, he could reconstruct the whole animal, proceeded upon the assumption that the ani- mal was a perfect work, made by a Creator perfect in his operations ; and if the animal was a perfect work, then he could see from its remains what must have been necessary to make that perfect work. But that would be assuming the point in controversy here. “ The experts say that several parts of the old machine are the same as those parts in the new. Undoubtedly, as far as those parts go, they are the same as in the new machine. But how is it with those parts that are not in the old machine? These experts cannot say, reasoning by analogy, except upon the assumption that it was a perfect sewing machine.” Then Judge Sprague commented ‘upon the information to be de— rived from an inspection of the remains: — " Now that old machine itself bears upon it indubitable marks of its having been an experimental machine, as it is stated to have been. There are certain marks upon it which the experts for the complain- ant say are perfectly unaccountable to them. The explanation given is that the machine was an experimental one, and that these springs and devices were put upon it at an early period in order to make it operate; but, finding that they did not succeed, they were abandoned, and some other mechanism substituted for them; and thus it bears the marks of the abandonment of those devices. The very anSWer of the defendant, therefore, to the difiiculties presented by the com- 11‘ AND B snow A FAILURE. 147 plainant, shows that it was an experimental machine. The question whether this was a perfected machine or rested only in experiment and was then abandoned seems to me clear. The great fact of this machine having been lain aside, as it was, is not accounted for, and is entirely inconsistent with the idea that it was a perfected or valuable machine at that time.” F and B (the tumbler and the tin can) and C and I are instru- ments too rude to permit any one to believe that they are more than experimental. When we consider that Drawbaugh was himself a very skilful workman, fastidious about neatness and beauty in his work, as witness his very elegantly constructed and shaped instru- ments G and O and the nice workmanship in all the later instru- ments, it is perfectly certain that he would not have rested one week with such instruments as F and B if their performance had given him the slightest encouragement. The defendants’ mechanical draughtsman, Knight, who made the drawings of the exhibits, and ’who professes himself to be a good machinist, testified on cross- examination (defts, ii, 776, x 168) that the wooden case instruments, such as D, E, G, 0, etc., had been made by a first-class mechanic. When inquired of about B he said (defts, ii, 777) : —- " XA. 169. The instrument appears to me to have been made as an experiment. I consider myself a mechanic, and have myself made far cruder experimental machines in order to test certain move- ments or results. " Q. 170. Should you make the same answer about 0, so far as the base supports and uprights were concerned? “A. I should.” And then he began to; wake up to the injury he was doing his em- ployers, and, after the manner of such quasi experts, he overdid the work in the other direction. "X Q. 171. Should you make a similar answer about the broken glass tumbler instrument F? “A. That instrument appears to have been made with care, and by a person who thoroughly understood his business.” But the Court will hardly be as accommodating to his employers as he was. There are some very serious troubles with B in addition to its rudeness. Articulate sounds from it, even when coupled with a good transmitter, must be very feeble, requiring the ear to be 148 BRIEF FOR COMPLAINANTS ON FINAL HEARING. closely applied (defts, ii, 1328). It is impossible to hold the in— strument B close to the car on account of the long baseboard, which projects beyond the tin can. No man could have used that half a dozen times with the feeble sounds that belong to the trans- mission of articulate speech without sawing off the board. Mr. Pope expressly testified that a man would have done that at once; and he states the reason why (complts, ii, pp. 1306—7, ans. 37, 58). But, stronger than that, a professed reproduction was made and put into the case, and Mr. Benjamin tried it, and thefirst [king he did was to cut of the board. (See defts, ii, 1307, x 121; p. 1308, ans. 122; and Drawbaugh’s deposition with statement of defendants’ counsel, ans. 1328, defts,ii, p. 1040.) In his anxious endeavors to hear even a few words with it, he pressed it so closely to the ear that an hour’s use pushed the can out of place; the defendants’ witnesses assert nine years’ use. If F was the kind of instrument alleged (our knowledge of the operative parts resting on Drawbaugh’s statements), the relations between the two interior plates require to be very stable and capable of the nicest adjustment as to distance. It here consists of a single rod, supporting a transverse arm, steadied only by loosely passing through a thin wooden cap piece. Difiicult as it would be ever to get it into position, the least touch, or even an attempt to turn the adjusting screw, would inevitably dorange the whole. More- over, thc plates produced show that the alleged powder “ box” never could have been placed in the instrument; nor could such an instru- ment as he alleges have been used as he alleges without something of the kind. Nor would a good Workman like Drawbaugh have con— tinued to use for nine years a broken glass tumbler with an uneven bottom for the case. (See p. 175, infra.) ‘ Very nearly the same remarks are called for by C and I. C re- quires as one of its parts a very heavy permanent horseshoe magnet. In the exhibit as produced there is no way of holding that magnet; it was laid on a loose block simply; it would be impossible to lift the instrument, or move it, Without its falling off; it would be hardly possible even to place the mouth or the ear against it without knock- ing it ofl‘. (See Mr. Pope’s X 48, complts, ii, p. 1310, which points out these facts.) The defendants made what they called a repro- THE INSTRUMENTS DO NOT SATISFY THE STORY. 149 duction of this instrument, and it had no means of fastening the heavy magnet (see Knight’s drawing of it, of which a reduced photo- engraving is on p. 140, supra). When JlIr. Benjamin used it only for a half hour’s test he immediately screwed the magnet to the base as it is now. He so states (det'ts, ii, 1301). As to I, v. p. 141, supra. Again, the story of Drawbangh is, that F was his first carbon or variable-resistance telephone, made in 1867, and that G, made in 1876, was his next carbon telephone. According to his story, from the broken tumbler instrument F to the very highly organized and tastefully designed instrument G there was no intermediate step. No witness hints at any, and one (Springer, det’ts, i, 190 ; app. p. 54; p. 322, infra) swears to continual and extensive use of F and B in 1876. It is folly to attempt to make the Court believe that he got ' good speech out of F as a carbon telephone, and did not, for nine years, put that great invention into any better shape. The story of which these assertions form the substantial part is a story which the Court cannot consider true. Again, the oral testimony produced for the defence is explicit -— if believed—that during the nine years—from 1867 to 1876—— most of Drawbaugh’s time was occupied with his talking machine (p. 322, infra). Witness after witness has had the assurance to say that whenever he went to the shop Drawbaugh was Working on his talking machine. Now, What has he to show for it? According to his own story, the whole product of the work from early in 1867 to the summer or fall of 1874 consists of the four instruments: the broken tumbler F, and tin can B, and the very rude instruments C and I. These, with all the changes he enumerates in them, could not have possibly occupied a week. We ought to add that the defendants perceived this difficulty, and applied to Drawbaugh to testify them out of it, but without success. He says that he sometimes made crude, temporary or experimental parts, though he does not say when. But he has never moved his shop since 1867, and the Court cannot believe in the existence ofeven many detached parts, when none are produced and no witness ever saw any. Drawbaugh’s testimony in this respect is (defts, ii, 861) :— 150 BRIEF FOR COMPLAINANTS ON FINAL HEARING. " Q. 402. State whether or not the machines here in evidence, including those marked ‘ F, B, C, I, A, D, E,’ and including, also, 'the old cup transmitter, of which you have put a sketch in evidence, WM; ‘ and including, also, the notifications, to which you have referred in « your testimony, include all the electric speaking telephone instru— ments which you have made from the time of the original cup trans- mitter to the time of the little magneto telephones D and E. “A. No, sir; notMall. At the time I was experimenting I would often make experimental parts,—~cases, you know, with coils and magnets, —— and afterwards would make more complete machines complete cases; that occurred a number of times. “ Q. 403. What became of these crude or temporary structures that you so made preparatory to making the more complete forms? ”A. I could hardly state what became of them; they would lie about the shop for some time, and then become destroyed in some way, I don’t know what.” Presently we shall find what it was that he spent his time experi— menting on; the witnesses have simply transferred his labors from one thing which they did not understand to another thing which they did not understand. Again, the story is that F and B talked well in 1867, and that A, which is not an instrument, but only half a one, was not made until 1874, and that D and E, the first real pair of instruments good enough to affect the patent, were not made until 1875. For eight years, according to his story, he had nothing but F as a trans- mitter to use with either B or A as receivers, and C and I as mag- ncto instruments, and yet he was a first-rate mechanic, experimenting, they would have us believe, all the time upon these instruments, and working on them, and with a machine shop at his disp0sal. He would not have gone a week with those instruments if their performance had been good enough to warrant his expending one day in making better ones. No matter how many Witnesses swear to that story, it is not true. Thus the exhibits themselves tell us that up to the time when he made D and E (whenever that was) he had not got beyond crude experiments, and the tests for results show the same. An experimental instrument, brought forward when Mr. Bell has 100,000 telephones in use and his patent is four years old, cannot hurt it; the character of the instrument marks the character of the story as an experiment on the credulity of the Court or public. THE SEQUENCE OF THE INSTRUMENTS AND ITS LESSONS. 151 We are aware that A is a finished instrument; it is not a tele- phone apparatus, but only a receiver; it may, hOWever, fairly be argued that its construction shows that its maker thought he had got a transmitter worthy to go with it; we incline to think so, and as no transmitter before G answers that requirement, We think that it must be placed after G, which is after the Bell patent. His story, until we broke it up on cross—examination, was that during all these years he Worked on nothing but telephone, and thought of nothing but telephone, absorbed in interest, and believ— ing a fortune in it. That is what a man who had reached C and I might have done ; that is what Drawbaugh did not do. The sequence of the instruments and what it proves as to dates. It is obvious, and is proved by Dutwbaugh, that each better set superseded its predecessor. Use of the inferior at (my period is con— ctusive proof that the better had not then been made. F (broken tumbler battery transmitter) and B (tin—can receiver) are the first. The tumbler is said to have had a diaphragm of bladde ' and the single rod now in it. It is said that afterwards the bladder was superseded by a tin diaphragm, and the present cap piece and single rod by a better cap piece and double rod, as in " F reproduced”; (let'endants’ expert, Mr. Benjamin, admits that this would be better than F (defls. ii, l252, 1255—6). B never had any diaphragm except of bladder. They are the crudest of struc- tures. C and I came next. They are said to have been made first With simple neutral electro-magnets. These, it is said, were after- wards kept in a magnetic condition by the addition of permanent magnets, as in “C reproduced” and ”I reproduced.” They are crude structures. The next, A, is a finished instrument, but there is no permanent magnet to it. It therefore requires to be used with a battery transmitter. D and E are highly organized and finished magneto instruments, requiring no battery, and able to practically transmit speech over a short line. They are the first that can, by any pretence, be considered able to really talk. Drawbaugh cannot tell when the alleged and unproduced double- rod instrument was used. No witness ever saw it, and defendants’ Witness, Springer (app. 54), swears that he used the produced in— strument F in 1876. 152 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Drawbaugh also says that a low mouthpiece (such as is now on “ F reproduced”) is better than a high one (defts, ii, 819, ans. 214—15). Drawbaugh also testifies (defts, ii, 1032) :— “X Q. 1275. You spoke of u~iug, at one time, a tin plate in- stead of membranes, on instrument F: when was that? "A. Icoaldn't tell the period, either, but that was some of the later experiments; that is, it might have been about the time that I made C, or earlier; my recollection is not very good; anything that I can remember distinctly I will state. “ X Q.1276. Whieh did you find the best on F, the membrane or the tin plate? "A. The tin plate, because that would not require so much ad- jastz'ng— so f1 equeut adjusting. " X Q. 1277. After you had tried the tin plate and found it better, did you use membrane on F? “A. I don’t remember that I did, after that; I would suppose I did not. "X Q 1278. Did you use a tin plate on F when you Were using B with it? “A. I don’t know; I don't remember that I did ; I might have, but I ain’t positive. "X Q. 1279. Did you use the tin plate on F when you were using C in connection with it? "A. Yes, sir, I think so; I know I used it in connection with 0.7V F as produced has only the higher cup piece fitted for bladder but not fora metal diaphragm. Therefore, when the produced and sworn to instrument was used, the metal diaphragm had not been invented, and C had not been constructed; for that had a metal diaphragm. Defendants’ Witness Springer swears that he used F and B habitually in 1876 (defts, i, 191—3, 197). Use of F and B, or ofB, at any period, proves that 0 and Iliad not then been made. Comparing the couple F and B with the couple C and I, Draw- bangh testifies (D, defts, ii, 814, 817, 1026, 1096) that the results with F and C were still better (2'12. 814) ; that C and I gave better results than F and C; ” much more satisfactory -- louder entirely better” (p. 807). Under examination by his own counsel he testi— fied (27). ii, 107G) :— THE SEQUENCE OF THE INSTRUMENTS,——-F AND B ABANDONED. 153 i“ Q. 1614. IVore the instruments C and I an improvement in respect to loudness? ‘ "A. Yes, sir; loudness and plainness, too. "Q. 1615. Were they an improvement or not in respect to ad— justment? "A. Yes, sir.” Moreover, either C or I was a better receiver than B. With F and C he says that he got (ans. 188, p. 814) ~— “Better results than I had in any former receiver.” "X Q. 1240. Did you consider C to be an improvement upon B as a receiver? ”A. I think so; it was made for that intention; I know it was better.” Then he improved I by puttingr in a new electro-magnet and add- ing permanent magnets, and of the new instrument I he says (ans. 208, p. 818) :—- “ It was a better instrument ; it answered better as a receiver, and it could be used as a transmitter, and I have used it as such.” Then he changed the mouthpiece, he does not remember when, and this “ gave better results.” The so-ealled “I reproduced” has both these improvements. C and I superseded B in fact (defts, ii, 1025) : —- “XI Q 1235. Did you continue to use B after you had con- structed C; and, if so, how much and how long? “A. I don’t remember that I used it; I may have used it seine; I often showed it to parties, after I had those other instruments; how much I don’t remember. "If Q. 1236. Will you mention the latest time when you remem- ber using instrument B? "A. That would be a little hard for me to do; I don’t remem- ber; I may have used it in the way of showing it to parties after I had better ones; I don’t remember the last time; I may have used it—spoke through it —at'ter I had other ones, to show the manner of the ones I had at an earlier period.” He afterwards confirms his statement that after hegot better in- struments B was shown, but not used, though F was used somewhat after B had been superseded (defts, ii, 1108) : — “Q. 1705. You were asked a number of questions in cross-ex- amination with reference to changes in instrument B before you quit using instrument B: when did you quit using instrument B? 154 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. "A. I could hardly tell when_ I quit using B; I had used the tumbler in connection—I had used it in connection with other in- struments after I had used the tin can, but how long I can’t say. I could not exactly state when I quit using the tin can ; I often though showed it to parties at a later period; it may have been up to within a year or so ago that I showed it, as that was one of the original instruments I used as a receiver; I mean that. I showed it to parties to illustrate that it was one of my original telephones or re- ceivers. "Q. 1706. Did you use the old tumbler instrument to illustrate in the same way? “A. Yes, sir.” The best proof of how completely the second set superseded the first is found in the followingfctcts testified to by Drawbaugh (delts, ii, 1040 :) — “X Q. 1261. Jacob Hawn, one of the witnesses produced by the defendants, speaks of seeing F and B (p. 279) before May 27, 1372, and on p. 282, in answer to Int. 40, he says he thinks the instruments were then in about the same condition that they are now: what is your recollection as to their being, prior to May, 1872, in the same condition that they are now? " A. My idea has been that they might have been in a condition that they could be worked; I ain’t sure; the instruments at one time, I know, after I had quit using them, had been carried to the garret or loft of the shop; we then brought them down again af'erwards; they had been in a condition to work until the mice had eaten the membrane out of the tin can B; I don't know exactly what time that was. " X Q 1262. About what time was it, to the best of your recol- lection, when the instruments F and B were carried to the garret or loft? “ A. That was about the time that I had made (J. or after that; I should suppose about 1872, 3 or 4; somewheres about that time. They were brought down again afterwards, for I know, even later than that, I showed them in connection with other apparatus. "X Q. 1263. \Vhen were they brought down? "A. That was some time after they Were taken up; I don’t remember what years. ”X Q 1264. To the best of your recollection, how long after they were carried up was it before they were brought down? “A. They might have been up six months, perhaps less, or perhaps more, I don’t know. “X Q. 1265. that was the occasion of their being brought down? “ A. It might have been that I wanted to Show them to some THE SEQUENCE OF THE INSTRUMENTS AND ITS LESSONS. 155 parties, as I know 1 did show them; that I wanted to show them how the first construction of the instrument was; that instrument may have been with some other ones, — may have been taken on the garret several times; I think so; I think it was taken back and forward several times. ”X (2.1266. You said that they were carried into the garnet after you had quit using them, and you spoke of the membrane as being destroyed by mice: did you ever fit them up again for use after youfirst quit using (Item? "A. I don’t remember that Idid; I remember of making changes of different membranes on that instrument, and on other instruments. "XQ.1267. Were those changes made while you were usingr them, or after you had quit using them ‘3 "A. The changes were made while I was using them,—- trying ditferent kinds of membrane.” Habitual use of the produced instruments F and B, indeed, any use of them or the existence of either in working condition or with the bladder on, disproves the existence of any better instrument at such time. This is true beyond criticism about B, because, no matter what transmitter he wished to try, he would not have used B when he had C or I, or D or E. There is substantially no proof in the defendants’ record about C and I. \Vhen Drawbaugh’s depoeilion was taken, one hundred and eighteen witnesses had testified for the defence. A very few thought they had seen C and I before 1876, but, with the exception of a state— ment by Henry F. Drawbaugh that he thought he might, have talked through C and I, but would not assert that he had before May, 1876 (see appendix, 1). 116), no witness pretended to have talked through them. Scherich (defts, i, 184) did have a vague impression that I had been used, and George \V. Drawbangh (defts, i, 624) that 0 had been used, while many swore to F and B. Daniel Drawbaugh’s deposition about C and I made plain the difficulty the defendants had sworn themselves into, and so they in’unediately produced some wit- nesses to C and I, but with bad results. Updegrafl' sWore to them, but his visit has been proved to have been in 1876, and after the Bell patent (app. 247). Draper swore to them; his visit has been proved to have been in 1677 (app. 257). Sutton expressed a doubt about C,—th:tt was all he could do. In surrobuttal they fared no better. McLaughlin (app. 137, 668) swore that he saw the defend- ants’ witness Hoffman hearing through I in August, 1873; but Hoff- I56 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. man had sworn that he did not. Zearing (app. 628) swore that he heard through I when it was on the middle of a table, by the side of which he was standing; Eicholtz (app. 630), though he does not really swear to I, swore that when he listened Drawbaugh started the water wheel, and all the machinery, and he could hear just as well ; both Zearing’s story and his are physically impossible. On the other hand, witnesses for the defence swear to the habitual and continued use of F and the habitual and continued use of B in 1873, 1874, 1875. 1876. This, of course, is fatal to any earlier date for C or I, or any better instruments. There is no year up to and including 1876 in which F and B are not both shown and used. Towards the close of this brief We have arranged the persons who said they heard through ditferent instru— ments in the years alleged by them. We state here a few of the later ones who say they heard through and looked at F and B. James Brooks (det'ts, i, p. 43, app. p. 20) says that he talked through F and B in the first month of 1874. Urias R. Nichols (defts, i, p. 94, app. p. 27) testified that at a visit which he says was in the middle of January, 1875, he saw B, and, although he did not use it, a membrane then existed stretched over the end of the tin can next to the electro-magnet. His language is that Drawbaugh’s explanation was " That the sound was conducted by electricity and the waves of sound imparted to a thin substance in the machine as the parchment with which this end (indicating the end of the tin box next to the electro- magnet of machine B) of the machine was then covered.” Henry Bayler (defts, i, 159; app. p. 44) is brought to swear that he actually talked through F and B in 1873. His visit is proved to have been at least as late as 1875 and probably 1877. H. C. Springer (clefts, i, 190, app. 1). 44) swears positively that he repeatedly and day after day experimented with Drawbaugh, talk- ing through F and B at the same time for some months after the first of April, 1876, and that they were kept connected to the lilies of wire. Drawbaugh’s attention was specifically called to Springer’s testimony, and he was unable to contradict that statement.‘ John Weber (defts, i, p. 258, app. p. 75) says that; the last of December, 1874, he saw B, — ____.Mr_.w-WA . THE SEQUENCE OF THE INSTRUMENTS AND ITS LESSONS. I57 " There was something wrapped around this here (indicating B) somewhere; it looked like a hog bladder or something like that fastened around here (indicating the rim of B next to the magnet).” Henry B. Musser (defts, i, p. 329; app. p. 87) swears that at a time which he asserts was the last of June, 1874, but which we now know was at least as late as the summer of 1876, and apparently the summer of 1877, he actually talked through F and B. J. A. Moore (defts, i, p. 650; app. 1). 204) testifies that at a. time which was between the spring of 1875 and the fall of 1876, but which he thinks was about May, 1875, and which, therefore, was some time after the date which the defendants allege even for D and. E, Drawbangh showed him B. " Q 27. Do you recollect Whether or not the end of the box next to the magnet was closed at the time of that conversation? “A. It was closed with somelleing thin, Ii!» 8 a bladder, drawn tightly tied around it like a drumhead.” John Vi'olf (defts, ii, 704, ans. 21, 24; app. 1). 229) says that he was at Drawbaugh’s shop in the spring of 1875; that he saw B lying on the bench, but did not see D and E. Unless the defendants are to resort to a practice which they have great need of resorting to, —picking and choosing among their own witnesses and asking the Court to believe these whom they think help their case, and disbelicve those who disprove it, — we have the fact here established, that in 1875 and in 1876 B was in working condition and actually used. Now, as the testimony of Drawbaugh as well as the story told by the instruments themselves explicitly is that this was not the case after the better instruments C or I or A or D or E were made, the Court must take it as a fact provetl, if the concurrent oaths of a dozen of his witnesses can prove anything, that neither C nor I nor A nor D nor E were made at the time stated. The Court will observe that the passage from 'B to D and E, according to the defendants, Occupied seven or eight years. The story is that C and I intervened, and that from their first construc- tion, through their alleged changes to D and E, was five years or more. B meanwhile had gone to the garret, and the mice had eaten off the membrane, never to be replaced. So it is certain that D and E did not appear until B had been long discarded and its 158 BRIEF FOR COMPLAINANTS ON FINAL HEARING. membrane destroyed. This evidence (which is good against the defendants) does not permit the existence of D and E before ”Mr. Bell’s patent. Instrument A as a piece of evidence embarrasses the defendants’ case a good deal. Not a witness, except Drawhaugh, can tell us what transmitter was used with it, unless it be one who says that I (a magneto instrument) was used with it, which is on the verge of the impossib.e. Drawhaugh says he used F with it, and got the best results with F. But it is not possible that he could have made A to use with so rude a contrivance as the battery t‘ansmitter F wthout remaking F; and, according to his story, he made no sec- ond battery transmitter until he made G, which they assume was after the Bell patent and several years after A. Drawbaugh says that A was, "A pretty good instrument, though it wasn’t as good as I in its modified form with the permanent magnets,—wasn’t as loud; I used it as a receiver” (ans. 231, p. 821). " But it was not so good an instrument to use with a magneto in~trument as it was to’use with a battery and a carbon transmitter” (ans. 1366, p. 104). “X (2.1367. \Vhat was the difficulty with A, and why was it inferior to other instruments. " [Objecled to by .Vr. fIill so far as [he question assumes that it was inferior when used in connection will; a battery and carbon trans— mitter.] “ A. Used with a magneto instrument, it was not so good; if it had been provided with a permanent magnet at the heel of the electro-magnet, I supose it would have been as good as any instru- ment; I thought it was a pretty good instrument when used with a battery transmitter.” The Court will note the objection found in the foregoing quota- tion. The claimant, who, if his story were true, had more experi- mental knowledge of telephones than any man in the world, was asked a plain question of fact, why one of his instruments, which he had said was inferior to others, was inferior, and he could not be trusted to answer it without an instructive objection. P1 ooffrom actual tests oft/26 alleged Inslrmnents or alleged Repro~ daemons of tlzem. — This is a delicate matter. The parts on which the Operation or the success of the operation depends rest on Drawbaugh’s TESTS OF THE INSTRUMENTS.-—CAPACITY ALLEGED. 159 Word alone (pp. 134, 144, supra). Reproductions, especially of such a delicate apparatus as a variable resistance circuit-preserving instrument as he alleges F to have been, made by him to-day, are certain to have the results of present knowledge in them; and it is proved, so far as existing remains afford means for comparison, that the so-called reproductions are unfaithful in material matters. For their fidelity Where his imagination and memory are foot loose, the Court has, therefore, no assurance whatever. But if such improved reproductions are not practical working instruments, and if they will not accomplish what the witnesses say from recollection that they did, there is an end of the case and an end of the witnesses. In the words of Judge Sprague, " the oaths of the witnesses become as inoperative as the machine.” The defendants knew that something must be done about this, so they caused their expert, Mr. Benjamin, to swear that he found all the originals which were in working order, and the reproductions which he had testified about to be “ good, full—sized, practical, Work— ing, speaking telephones” (defts, ii, 1256). \Ve simply did not believe that, and we took the step of asking him to repeat his tests in the presence of Witnesses. It was in one sense a bold step, for if they had talked as he said, it would have been a strong piece of evi— dence for them, even in spite of the alterations and improvements introduced ; but we thought we knew our ground, In answer to our. request the defendants themselves by their own experts tried to transmit speech with the various improved "repro— ductions ” or original instruments under conditions chosen by them- selves at a place chosen by themselves, and under circumstances far more favorable than ever could have existed at Drawbaugh’s shop. The only thing we required was that there should be persons present to watch and report what went on, and that notes should be takenat each end of What the defendants’ speaking expert uttered into the transmitter, and what the defendants’ listening expert thought he heard at the receiver, so that nothing might be left to the imagination. - The results obtained from these tests are evidence which the defend— ants themselves have furnished. The tests lasted three days. We afterwards, by our experts, made our comments upon them. The de— fendants took testimony for a year after that and have neither replied 160 BRIEF FOR COMPLAINANTS ON FINAL HEARING. to those comments nor offered to repeat those experiments. This is proof the defendants furnished, though probably they did not expect to; it is a part of their record. The reports of what went on at both ends, for the most part by two sets of writers at each end, appointed by each party, are put in evidence on the cross-examination of their export, Mr. Benjamin, and if they are printed only in our volume it is because the defend- ants failed to print them, as they should have done, among their exhibits, and we were too anxious to have them in the case not to take the trouble to print them ourselves. Now let us compare the allegations with the facts. Alleyed Capt/01w of 15/16 alleged Iashuments. ——Drawbaugh testified (detts, 1i, pp. 809—11) that he made C befo1e the spring of 1870, and made F and B ”two or three years before that.” Samuel Snell (detts, i1i, surbtl, 411) says that he heard good speech at B in the first half of 1867. Of the capacity of F andB, Drawbaugh says (1'6. 810) :— " Q.178.D11ri11g that time and before you made 0, what results had you been able to wet with the instruments B and F? "A. Sufficiently good to be heard distinctly; there were even wo1ds that were whispered; you couldn’t just hea1 the Wolds ex— actly, but could hear the wbispe1ing;1 did that often , spoken wo1ds you could hea1 — the whole scntences,—-I mean words spoken out loud and not whispe1in;r many. I would have persons in the cellal reading printed 111atte1,——- some adverti~ement or something —and I could 110111 the wolds that we1e I‘IGICl , and at other times I would go down into the cellax and read somethi1w, a:,nd coming up, they would repeat the Words to me that I had read.’ That is 1111 assertion of instruments abundantly fit for commercial use, and so perfectly reliable that they would produce these results habitually, without trouble, when the transmitter F was put into the hands of any chance comer and Drawbaugh was at the other end of the line listening. This is palt of the story of their claimant. Drawbaugh says (defts, ii, 814, ans. 188) that the tumbler F as transmitter with C as receiver gave — “ Better results than I had with my former receiver.” P. 1029. " X Q. 1240. Did you consider instrument C to be an implovcment on instrument B as a receive1 ‘? "A. I think so , it was made for that intention, I know it “as better.” TESTS OF THE INSTRUMENTS AND THEIR FAILURE. 161 With C and I " the results, as I remember now, Were satisfactory, and better than the results with the tumbler and C. I am confident that it was bet- ter than the original tumbler and C instrument” (ans. 202). "Q. 203. How did the results, when using C and I together, compare with the results when using F and B together? "A. When using I and C together it was much more satisfactory, -—- louder, — entirely better.” On redirect examination by his own counsel, he said (i6. 1096) :— "Q 1614. Were the insti‘uments C and I (as compared with F and B) an improvement in respect to loudness? "A, Yes, sir; loudness and plaiuuess too. "Q. 1615. Were they an improvement or not in respect to ad- justment ? "A. Yes, sir.” He changed I by adding permanent magnets, and says of it then (ans. 208, defts, ii, 818) :— " It was a better instrument; it answered better as a receiver, and it could be used as a transmitter, and I have used it as such.” He says that A was hardly as good as I (v. p. 158, supra), but that D and E Were better than either. D and E will talk; they are weak, but with them conversation can be carried on over an office line. Moreover, C with I and D with E formed two couples of magneto instruments, which, in their nature, if able to talk at all, Would talk both ways and need no battery nor nice adjustment. If they talked at all they would be always ready. This, then, is their story which they ask the Court to believe: that F and B were practical instruments, fit to be operated by any one, transmitting conversation and newspaper extracts in a perfectly intelligible manner; that this point was reached in 1867—8—9; and that every succeeding set of instruments was an improvement on this first set. They must have been very good, if the testimony is true. Their testimony generally is offered to and purports to make out such a case. There is no piece of evidence in the case of more far-reaching im- portance than the tests We obliged the defendants to make, virtually in the presence of the Court, in the presence of both parties, to be re— ported by both parties (and the short-hand and long-hand notes 1. ,. . ., ' F "L“ -_'.r,:“;~;-_.::;.;....-._a;.,.n', ~ “r BMW 162 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. taken by both sides are substantially identical). What was there done the Court knows as it knows the contents of a written docu- ment, and it has only to draw its conclusions of law from it. No room for controversy as to facts or for doubtful memory exists. \Vhatever recollection runs against this solid wall of ultimate tact will be broken. The report of the tests of reproductions of instruments alleged to precede D and E (app. 529—557) shows that they conveyed 1.0 indication whatever, beyond here and there a scattered word or two, of what the listener spoke; that as a means of informing the listener of what the speaker desired to communicate to him such an apparatus aspeifectly worthless; that it could not be, in legal sense, a “reduction to p: aclz'ce” of the all of transmitting speech. If instruments at Drawbangh’s shop at the dates alleged talked even as well as those in .New York, none of them ewcept D and E were good enough to anticipate the Bell patent. With the smallest allowance possible for the improvements intro— duced into the so-called reproductions, the greater skill of the opera- tors, the advantage of the use of modern telephones to adJust by, and the vastly improved conditions and surroundings, the tests show that no articulation ever could have been heard at Drawbaugh’s shop but at best only an occasional word by the witnesses, who say they looked at them. The whole case for the defence rests upon the assumption that when a large number of men have sworn to speech through instru- ments at Drawbaugh’s shop, the fact is proved beyond doubt,——even though the instruments are proved to be incapable of doing what is sworn to. More than half of them swore to speech through instru- ments which cannot talk. The whole reliance of the defence is destroyed. \Ve call the attention of the Court to the exact results. The re- ports are in complts, iv, exhibit pp. 4257—491. Mr. Pope collected them, arranging in two columns what the defendants’ operator generally Mr. Hill, their counsel, who has a remarkable voice) spoke into the transmitter, and what the listener (generally the de- fendants’ expert, Mr. Benjamin) said that he thought he heard at the receiver. Mr. Pope’s consolidated statement is in his depo— TESTS OF THE INSTRUMENTS AND THEIR FAILURE. 163 sition (complts, ii, 1313 et seq ), and an abstract of it is in the appendix (p. 540 et seq.). Mr. Pope also states the improvements introduced into the so- eallcd reproductions, even judging from the remains and from the testimony, and points out the other advantages enjoyed. The lis- tener, instead of being a country farmer, in the noise of a marhine shop, was a man of quickened and trained faculties, straining his at- tention to the utmost, placed in a closet in the interior of a building with closed door, and absolute quiet preserved about him. The de— fendants took testimony two years after this, and if theythonght that the conditions could have been materially improved, the tests would have been repeated. It was on March 21, 1882, that the tests were called for (defts, ii, 1293) ; on March 28, they took place. It was agreed that any ac- cidents to the instruments since Mr. Benjamin firsttried them should be repaired; this was done by Drawbaugh (2'6. 1300). Private re- hearsals by Mr. Benjamin and Drawbaugh took place in the interval (ib.1323). " When the party assembled on March 28, to ascertain whether Mr. Benjamin was correct In saying that actual tests showed that the ex- hibits were " good, full—sized, practical, Working, speaking tele- phones,” the presence ofsnch electricians as those who attended on be- half of the Bell Company (Prof. \Vright of Yale College, Prof. Cross of the Massachusetts Institute of Technology, and Mr. Pope) made Mr. Benjamin feel the position he was in, and he tried to lighten his fall by confessing in advance when “ F reproducec ” and "B repro— duced ” were connected up that "All he expected to gel was a sound and now and then a word.” This statement is testified to by Mr. Pope (complts, ii, 1343); it is not contradicted; it expresses the truth of What the result was. “Then Mr. Benjamin, after the setrials, testified about them, the best he could say of “ F reproduced ” and ” B reproduced” was : — “I recognized and repeated words and parts of series of irreg- ular numbers.” Now this pair is a marked improvement on the alleged pair through which Drawbangh and his unskilled neighbors swear they heard perfectly intelligible sentences and advertisements or printed matter. W'- t, VM4.,I.;C.V._2TM~;4.A .-;_: ammy-J—«k-em -—A ' .. m4 164 BRIEF FOR COMPLAINANTS ON FINAL HEARING. ACTUAL REsULTs OF TIIE NEW YORK TESTS. “ F reproduced” and “ B reproduced.” The instrument “F reproduced” was first adjusted by using a modern magneto as receiver; ten minutes were spent in this vay before the in~trument was in a fit condition to begin to try it with “ B reproduced.” Then phrases were spoken and out of them were heard the following: "I am now talking into . . . transmitter”; " Galvanometer in circuit,” only a part of a sentence; “Do you understand”; “Answering”; “what I say,” and three detached words from other sentences. Newspaper sentences were tried, but none understood. This was all that was accomplished in thirty minutes (complts, ii, 1323; app.). The instruments Were then readjusted by the use of a modern magneto receiver. Mr. Benjamin listened, and heard as follows (complts, iv, exhibits, 487—491) :— "1 am now speaking into the old tumbler instrument. Do you hear me?” That was heard correctly. A sentence read — nothing understood. A sentence read — no articulation. A sentence of 31 words read, out of which the words " only? " to sound” were the only ones heard. A sentence of 18 Words read; the listener thought he recognized three words only, and they were words which were not spoken. ! and A sentence of 3 Words read and no words at all understood. A sentence of 24 Words read ; the word " and” recognized. A sentence of 28 Words road; the listener thought he recognized two words, which, in fact, were not spoken. A sentence of 12 words read; nothing recognized. A sentence of 16 words read; nothing recognized. A sentence of 22 words read ; nothing recognized. The listener said that a passing horse car drowned the voice, although the car was at least 50 feet from the building, and the noise had to pass through a heavy brick wall with closed window, across a room, and through a partition or heavy wooden door into an inte- rior closet. TESTS OF THE INSTRUMENTS AND THEIR FAILURE. 165 A sentence of 20 words read ; nothing got. .15 irregular numbers were counted irto the transmitter; evidently the listener heard a sound at each, and he knew from that or other information, that numbers were being counted; he stated 14 num— bers as numbers he heard ; 3 of them were right and all the others wrong. Then 16 irregular numbers were counted into the transmitter; the listener stated 15 numbers which he thought he heard ; only one was right. Then 16 more were counted into the transmitter; the listener stated 16 which he thought he heard; seven of those Were right. Then 15 more were Counted into the transmitter; the listener thought he heard 3, only one of which was right. The same 15 were repeated into the transmitter and nothing was heard. The instrument was readjusted and Mr. Hill spoke a sentence, "Do you bear now?” This was heard. Then Mr. Hill spoke 16 irregular numbers into the transmitter; Mr. Benjamin listened and thought he heard 11 numbers, 3 of which were right and the rest Were wrong. Then 14 numbers ’were spoken into the transmitter by Mr. Hill; Mr. Benjamin thought he heard 7, but only one was right. The Court will observe not merely the small number that were heard right, -— so small a number that it is doubtful Whether the results were more than guesswork, —- but that the listener thought that he heard 63 numbers correctly. Only 16 of these were right. Without a system of checking ofl’ the results he would have been prepared to swear that he heard 63 numbers correctly; it turns out now that as to 47 of them he was wrong. Such testimony without the system of checking elf would be as worthless as the instrument itself is. Sentence of 23 words read into the transmitter by Mr. Hill; Mr. Benjamin listened, and recognized none. Sentence of 27 words read into the transmitter by M. Hill; Prof. CrOss listened, could understand none. A sentence 0136 words read into the transmitter by Mr. Hill; Mr. , a ‘ 4——' "a“ 1"», ' auv....,_;-.M‘ é%.__'mfi - ”M: j 424.5,,» '2 2%.: 166 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Pope listened, found the sound loud enough. but could not under- stand a word. Mr. Hill repeated the same sentence of 36 words, and Mr. Pope could not make out one of them. Mr. Benjamin read a sentence of 29 words; Mr. Pope listened, but could understand none. Mr. Benjamin read another sentence of 22 words; Prof. Cross listened, but could not understand anythina. Then Drawbaugh readjusted the receiver. Prof. Cross spoke into the transmitter some phrases: first, "I see five cats”; Mr. Benjamin announced that what he heard was, “ How is that for high ? ” Then Prof. Cross uttered 4 phrases of 5 words each; Mr. Ben- jamin, listening, understood none. Then he tried a phrase which had been used before, and apparently was familiar to Mr. Benjamin, “ [am new speaking into the tumbler transmitter”; it was recognized correctly by Mr. Benjamin. A phase of 8 Words; Mr. Benjamin, listening, did not hear. A phrase of 10 words; Mr. Benjamin, listening, did not hear. A phrase of 11 words; Mr. Benjamin, listening, did not hear. Then 9 irregular numbers; Mr. Benjamin listened and thought he heard one, which was not spoken. Then 11 phrases and sets of numbers, in all 70 utterances of words or numbers, not one of which was understood by the listener, Mr. Benjamin. Then a word and 4 irregular numbers; Mr. Benjamin thought he heard 4 numbers, but only 2 of them were right. Mr. Hill then read a sentence of 28 words; Prof. Wright lis- tened, and thought he heard 2, which were not spoken, and heard correctly the 2 words, ”New England.” Mr. Hill then spoke a sentence of 12 words into the transmitter; Mr. Jaques, the electrician of the American Bell Telephone Com- pany, listened and heard 2. Mr. Hill then spoke a sentence of 9 words; Mr. Jaques heard 1. Then a sentence of 4 words; and Mr. Jaques heard none. Then a sentence of 8 words ; out of which Mr. Jaques heard 3, —- “ adjourn for lune/l.” TESTS or THE INsrRUMuNrs AND THEIR FAILURE. ——F AND B. 167 The test continued through three days, until the defendants did not want any more, but they never after thefirstforenoon ventured to repeat any tests with " F reproduced ” and “B reproduced.” T/ze Defendants made a false Test, using improved Instrzmzents. —— This test, considered by itself, however, does not tell the whole truth of the matter. In " F re- produced,” A is a glass tumbler, forming the case. On it rests the wooden mouthpiece B, below which, but fastened to it, is the diaphragm of sheet iron 0, with the modern very thin air space between it and the mouthpiece. Dependent from the cap B are two rods, F F, connected by a crosspiece at the ‘ggggopggi";f7fg’ bottom, and forming a stirrup, on which rests a shallow wooden box. The bottom of this is lined with a metal plate which, by means of a metal rivet, is connected to the stirrup and rods F F. On this plate, and in the box, is placed powder (in this case a mixture of five parts finely powdered gas carbon and one part plumbago). On top of that is a metal plate E, connected by a metal strut 8 with the centre of the iron diaphragm. A battery has one pole connected by a conducting wire to the rod F, and the current flOWs through the rod to the rivet at d, through the rivet to the plate inside the box at the bottom, then through the powder, the upper plate E, the rod 6, the metal diaphragm, and the connecting wire H, back to the bat- tery. The rivet at d is essential, because the wooden box is a non- conductor, and, but for this rivet, the current could not reach the plate or powder. In this contrivauce the box must be a non-con- ductor, because, if it were of metal, the current would pass through it and not through the powder. As the diaphragm, acted upon by the voice, vibrates, the upper plate connected to it presses with more or less force upon a mass of powder; the current from the battery is passing through this powder and going along the line to the distant receiver; every variation in the pressure is supposed to and theoretically will vary the electrical conductivity of the mass of powder in direct ac- cordance with the variation of pressure, and thus produce the undu- latory current described in Mr. Bell’s patent. But the difficulties which arise in the use of this instrument are many. The normal Au” III/«$5533»; ‘ 168 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. pressure must be exactly right or no articulation can be produced. If the plates be brought too near by the breadth of a hair, the normal pressure is so great that the voice will not produce perceptibly effi— cient changes. If they be too far apart by the breadth of a hair, the vibrations given to the upper plate by the diaphragm will, so soon as the powder has been patted down a little by the first motions of the vibrating plate itself, so raise the upper plate as entirely or nearly to break contact With the powder, producing a break of current or abnormal changes which cause a loud sound in the receiver, entirely and necessarily inarticulate. So unstable is this instrument that even after the correct adjustment has once been secured, which can only be done by trying, the slightest jar of the apparatus, even the action of the voice, will derange the adjustment and absolutely pre- vent any articulation. Mr. Pope (complts, ii, 1372) states the facts about this and the reasons of it. Mr. Benjamin said that the instru- ment was of such a nature that what he termed and correctly termed an infinitesimal motion of the adjusting screw makes the difference between getting a word through and getting nothing at all through that was intelligible (defts, ii, 1328). Elsewhere in his deposition he said that the whole test of this instrument might be termed “a ccnstcmt trial for adjustment”; and he was right (defts, ii, 1327). During the tests the defendant Marx remarked :— “ If a man moves in the room it upsets this instrument (F repro- duced) ; the least jar upsets it.” Pope in complts, iv, exhibits, 601. “F reproduced” was an instrument in which the contrivanccs to procure and then to preserve adjustment enough for even a word or two at a time were far better than in F. Chief among these improve - ments are the substitution of the metal diaphragm for the bladder, and the double rods and stirrup for the very shaky, one may say "touchy," single rod and projecting arm of F. A mere touch of the instrument, or an attempt to turn the adjusting screw of F, would inevitably destroy any adjustment. But besides this he had aids to adjustment which Drawhangh did not possess. Invariahly “ F reproduced” was first adjusted up with a modern commercial receiver, —— generally the Bell Company’s i11- strument. But, more than this, a telltale line run between the rooms enabled the listener to direct the adjustment himself as the TESTS OF THE INSTRUMENTS AND WHAT THEY PROVE. —F. 169 sounds he heard indicated, — whether a little closer or a little looser ; and his indications, transmitted back at every three or four words, enabled the transmitting operator to adjust the instrument and modu- late his Voice to the best advantage. Mr. Benjamin speaks of this as a necessity (defts, ii, 1319) :— “ The testing of F and A required consideral‘de conversation back and forth on the telltale line, owing to the extreme delicacy of F [by which he means “F reproduced’] in the matter of adjustment.” It dit " require ” it. Mr. Pope so testifies. It was enough to make all the difference between a few words and no speech. If this, testified to by Mr. Pope (complts, ii, 1317, 1375), were not the fact, the defendants would have disproved it by a repetition of the test without this modern aid. The precautions taken with “ F reproduced” when tried with " B reproduced” were to place it on a heavy office table, and to allow no one to move in the room ; 0n the next day when it was tried, not with “ B reproduced,” but with A, a heavy block of artificial stone was placed on the table, and the transmitter placed 011 that, the block, by its inertia, still further preventing any accidental jars. But the instrument so tried was not the instrument which the defend— ants’ witnesses had sworn to ; it was not F; it was an entirely difl'er— ent instrument; it was "F reproduced.” The differences of con- struction were not only marked, but they were diti'erenees which were precisely intended and calculated to make a suitable adjust- ment more possible and more durable, if that word can be applied to anything so unstable. It is evident from the construction of the instrument that the differences would have precisely that effect. Drawbaugh himself, in his own deposition, admitted that such was the fact; the passages are collected (p. 137, supra). He says that after he made the second form he never used the first again (p. 152, supra); that sums up the difference. Those there mentioned are not all. “ F reproduced ” is a whole tumbler, with an even bottom, so that placed on a table it will remain comparatively steady. F is a tumbler with an irregular broken bottom, and it happens to be such that, placed on the table, it is extremely unstable. The character of the powder employed is very essential; Drawbaugh testified that he experimented for many years with difl'erent powders, and with varying results. ‘ 170 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. Of course he here used the best. The listener in New York was secluded in a closet, and both he and the transmitting operator were practised men. The statements in the record are to the effect that perfectly good speech was heard when the inferior alleged instrument F was used, when the listener or the speaker was a country farmer, left alone to manage his own instrument, Drawbaugh being at the other end. In several cases the only person in charge of the transmitter F is said to have been Drawbaugh’s boy, six years old. Now what, judging from the results in New York with "F reproduced,” what could have been got with F even if made as Drawbaugh alleges, when used by the persons, and under the condi- tions described by the witnesses? Plainly nothing. Why did not the defendants try an instrument like F? There is something to be read between the lines of these tests. The defendants rest their case on the assertion that what so many witnesses have sworn to must be true. Still, after calling forty witnesses to swear that the alleged early instruments did talk ten and fifteen years ago, they felt that their case would be much helped if they could get one witness to swear that such instru< ments would talk to-day. To do that, they must reproduce the instruments as sworn to, and the conditions as sworn to. They did not; they deliberately manufactured different and better in— struments and availed themselves of vastly improved conditions. The testimony of Drawbaugh is, that with the original trans mitter F, newspaper paragraphs were transmitted and heard in B by country loafers and farmers, but that at some unknown time afterwards he modified F by making a better mouth- piece, using metal instead of bladder for the diaphragm, and by substituting for the lower tin plate suspended by a rod on one side of it, a wooden cup, suspended by two rods on opposite sides of it, having adjusting screws on both rods for the purpose of adjustment, while the box was provided with a metallic con- ductor in the bottom; this supposititious so-called second form was the only one used in New York. The necessity for producing such an improvement on the original for exhibition was impera- tive, and well known to the defendants. Such a structure as the "F REPRODUCED” Is A FALSEHOOD. 171 new form, when operated by skilled electricians, under peculiar conditions, with the knowledge of to-day, could be made to trans- mit occasional words, and to that extent give some color to the tes- timony of the Witnesses who heard newspaper paragraphs read and conversations carried on without difficulty through the original F. But the original F had no such capacity. And if the defendants had relied upon it, and it had been repro— duced and tried, no single word could ever have been heard through it. Its production would have effectually destroyed the entire mass of testimony that it had been a talking transmitter. Let us examine, then, the testimony as to this sul’istitntion. The claimant, Daniel Drawbaugh, reproduces out of his memory the so- called " F reproduced,” and no other witness is to be found to support him. On the contrary, every witness whohas been called by the de— fendants identifies the original F as the instrument he saw. And finally the question of its identity was brought to Drawbaugh himself by the testimony of Springer, who identified F, and testified that it was in habitual use in 1876 (defts, i, 191). Springer’s testimony was put to Drawbaugh 011 his cross—examination (defts, ii, 903), and he did not attempt to correct it or contradict it in respect to exhibits B and F. So that all the testimony in the case, except Drawbaugh‘s in his direct examination, established the continued u226) :— “ Q. 1. Have you any recollection of seeing Mr. Drawbaugh’s talking machines and hearing him speak of them about the time you ‘ A . M '54.,“ 1.4-” new -h£)_uétoa“gxm' m ‘ M“ w . " THE AXLE COMPANY DISI’ROVE THE} CLAIM. 265 were becoming connected, or during the time you were connected, with the Axle Company? . "A. Yes, sir; he showed me an arrangement, —I don’t know what you might call it, —- a box arrangement, that he had there; he said if he would talk into it you could hear him in Pittsburg; he went on to explain it to me; Idlcln’l take much stock in it, norpay mac/t atlentz'ort to it; the remark that you could hear it to Pittsburg is about the only thing that I recollect of. “ Q. 2. I suppose your interest was mainly on the Axle Com- pany‘s business, was it? “A. Yes, sir. " Q. 3. About what time was it that he showed you that instru— ment, and had that conversation about it? "A. It was shortly after we Went into business together; I think it was the first time I went over there after we had signed the arti- cles of agreement here. " Q. 4. Do you mean the articles of agreement of copartncrship, dated Dec. 23, 1874? <‘A. Yes, sir. “ Q. 5. , Please look at the machines A and D, now shown you, and state whether you have any recollection of having seen them at Mr. Drawbaugh’s shop about the time you have referred to. “ [Objected to as leading. “ Question withdrawn and the following substituted] “ Q 6. Please look at the instruments A and D, now shown you, and state whether you have any recollection of them, and if so, when and where you first saw them. "A. They look to me as if they are the ones that Drawbaugh showed to, me at the time he made the remark above referred to, that he could be heard to Pittsburg.” " Q. 13. ‘Vas it in cold or warm weather when Mr. Drawbaugh first showed you his talking machines? "A. It was in cold weather. “ Q. 14. Was it during the first winter that you were connected with the axle business? “A. Yes, sir. "X Q. 15. Please tell me anything else you remember about Drawbaugh’s talking machines. "A. I don’t remember anything at all about it, except that one remark he made, as I have said. “X Q. 16. Didn’t you ever see any talking machines there, ex- cept once? “ A. I don’t remember. "X Q. 17. Do you feel quite sure that you have never been at Drawbaugh’s shop since February, 1876? “A. I don’t recollect the dates when I was there.” 266 BRIEF FOR COMPLAINANTS ON FINAL HEARING. As usual, the defendants do not dare to trust the witness to de- scribe or pick out the instruments, but thrust in front of him the two they want him to swear to. If such a deposition were worth examination in detail, it will be seen that the first time he went there was plainly before D and E were made. \Vhethcr the witness has been at the shop since February, 1876, he does not know (x—ans. 17). Upon cross—examination, his recollection of the contemporaneous dates of his own business was Worthless. The Court will not believe that a man, incredulous in the presence of D and E, was argued with about their merits, when ten words through them would convince him with no trouble. That which he did not believe would talk and paid no attention to was not a talk— ing instrument; nor can he be a valuable Witness. But why did not the defendants call Jacob Ifh'ne, the patentee of the axle, and therefore the most constant frequenter of the shop out of the whole firm? Their witness Decker (shown elsewhere to be a Munchausen) says (defts, ii, 1152—55, app. 252) that he met Kline there in August, 1875, and found the shop full of telephones. Kline is father-in-law to Capt. Moore (Decker, defts, ii, 1152, ans. 17; A. L. Rupp, complts, ii, 1117, ans. 58—9). He is father-in-law to H. N. Bowman, of Camp Hill. H. N. Bowman has been employed by the defendants to travel about and take affidavits, and was called by them as a witness to prove some papers. (See A. L. Rupp, eomplts, ii, 1117, ans. 58—9; Bowman, (lefts, surbtl, p. 1136, ans. 7, and continued mention of his name in cross—examination of defendants’ witnesses.) Their relations to Kline were therefore such that they would have called him if he knew anything about any telephones there. But the real fact about him was drawn out by the defendants in cross-examining the complainants’ witness, T. Weaver. Weaver, who knew Kline, visited him at the complainants’ request, to ascer— tain whether he ever knew of the existence of a telephone at Draw— baugh’s shop, and the result extracted by the defendants’ counsel was as foHOWs (lVeaVer, complts, i, 448; app. 405) :— "X Q. 409. “’hen you interviewed Mr. Jacob Kline and Mr. J. A. Moore, at Camp Hill, as you have testified, did you represent to those gentlemen, or either of them, that you called upon them as a friend of Daniel Drawbaugh? THE AXLE COMPANY DISPROVE THE CLAIM. 267 "A. I don’t know that that question was asked me by Capt. Moore, 01‘ Whether I said anything to him about it. Mr. Kline pressed me, by questions, to find out on which side I was, and, as he didn't appear to know anything of importance about the matter in controversy, I think I didn’t tairly tell him on which side I was, but meant to fairly tell him in case he had knowledge, or to the effect that his knowledge might be used against Drawbangh.” Here the defendants let Kline rest, though they had great need of him to support their wild witness, Decker, if he ever saw any tele— phones (Decker, app. 253). Augustus Ifahney, called by the defence (defts, iii, surbtl, 254, app. 613), worked for the Axle Company, helping them put in their machinery, about ten days, in the spring of 1875. In 1880, 1881, when the defendants prepared their case, they visited him twice, and did not call him. In the summer of 1883, he informed a represent- ative of the complainants that he was sure there were no telephones at the shop when he worked for the Axle Company in the spring of 1875, and that he first heard of them when he moved on to a particu— lar farm, which was in 1879 ; this was written out and was signed by him. In November, 1883, he testified for the defendants that he saw A and E when Working for the Axle Company, though he never talked through any; but on cross-examination he admitted that this had not come to his recollection until after his interview with the complainants, a few months before he testified. The Court will treat this man’s recollection as a recollection which disproves the defence; and it will learn from him how the defend- ants' record, particularly the surrebuttal record, is made up. We have now considered every man (except the claimant, his brother and two nephews) who ever regularly worked in the shop, or who was interested in any business carried on there before mid- summer of1876. They are —— Faucet Company, etc., partners . “ “ workmen, say . Mill Bush Company, partners Haucks, say D. A. and S F. Their workmen, Nichols and Major Axle Company Ipwwqaw 00 g; 268 BRIEF FOR COMPLAiNANTs ON FINAL HEARING. These thirty-four men cover the whole period in controversy. Not one of them ever talked or was ever asked to talk through a talking machine. None of them ever saw an apparatus connected 11p in condition to talk. None of them ever saw a pair of instruments. What a few of them do say dispels the notion of the presence of any practicable instruments absorbing Drawbaugh’s time and thoughts. The most that is got from them is the following : -—- No partner in the Faucet Company knew anything about it. The Faucet Company sought for some invention of his to patent and manufacture, but a telephone was not ofi'ered them and they never heard of it. No workman, during his employment, saw or knew anything of it, except that Hotlinan thinks he saw B, and Schrader, “ on a few e occasions,” 'in Drawbaugh’s private room,” saw some detached parts, one of which he thinks he recognizes as B, and, living in Drawbaugh’s family, heard Drawbaugh "speak of it at table on One of the Mill Bush Company, who only went to the shop two or three times (Bergner), who was thoughta worth- several occasions.” less witness when the defendants were putting in their case, and was only brought up to the point of even the faintest testimony three years later, thought Drawbaugh at some unnamed time had invited him to come and see it; but he never went for the purpose, and never looked at or talked about such a thing when there. The members of the Axle Company, covering the period of the issue of Mr. Bell’s patent, can hardly swear to any more; and the most intelligent of them, Capt. Moore, concerned at the shop down to midsummer or early fall of 1876, thinks he remembers B in working order, but nothing else. The exhibition of B in working order dis— proves the exisz’eace of any better iizslrmnent. lVe have not as yet criticised even these witnesses; taking them at what they purport to swear to on direct examination, the result of the inquiry put to these thirty-four persons is fatal to the claimant’s case. There is another person whose business relations with Drawbaugh Were of such a peculiarly intimate nature that he must have known all about the alleged telephone it' it existed, and indeed beyond all i; I l 1 .WWW‘ fin”.-. DAVID STEVENSON NOT CALLED. 269 question would have helped Drawbaugh patent or manufacture it if any such invention had existed. David Stevenson, of Harrisburg, carried on a machine shop, sold supplies, etc. He made patterns and did work for the Faucet Com- pany (W. N. Kline, det'ts, i, 654), Drawbaugh got up a set ofpat- terns, and manufactured sm1e pumps for him, and testifies (defts, ii, 1008) :— "X Q. 1161. Did you ever get up and manufacture a syphon pump or steam pump of any kind; if so, state what it is. “A. Yes, I forgot about that; I got 11p a set of patterns for Mr. Stevenson, and I manufactured afew; I don’t remember how many. "X Q. 1162. When was it that you 111111111t'11ctured those steam pumps, and were they pumps (11" your own invention, or did they embrace any invention ot'yours? ” A. Those that I 111a1111t'aet111'ed for Stevenson, I don’t remem- ber the time; I manufactured some of them during the time that Mr. Chellis took charge of the shop; part of it was on a principle that I got 111) the model of one quite a number of years ago. I didn’t call it a pump then a device for supplying steam boilers with water. " X Q. 1163. Did you make any of those pumps for Mr. Stevenson before Mr. Cheliis took hold of the business, and if so, how long before? "A. Yes, sir; I don’t remember how long; it might have been a year or two. "X Q. 1164. IVhere does Mr. Stevenson reside, or carry 011 business, and how long have you been accustomed to deal with him in any way? “ 1. He res s'idcs 1n H111isl1111(r;hel11 got a machine supply store ther'e , I have been accustomed to deal with him quite a 11111nb1-rot ye1 11's , the old Faucet Compauyh 111d some of theil work m1'1de 111 his shop durine‘ the time that he run a shop here in H1"1111 shnrg; that was pr'io1 to the time that they 11111 the shop th 1t I am now in. ”X Q 1165. \Vhat other dealings have you had with Mr. Steven- son since that time besides wh at re latcd to pumps? "A. I dont remembe1 11111 pa1tienlar d alinus; I had manufac— tured some small ariangemems that he te1med a tlno cl a11er..l had made and changed some of the patle111s on those machine fo1 him, and he furnished the materials; he1lso tu1nished the 1111te11111s for those syphon pumps. There may have been some other dealings, I don’t remember.” That is, he resided at Ha1risburg while the defendants were tak- ine testimony. They did not call him. Af"11-1wa1ds it appeared D [that dming the suriebuttal he 270 BRIEF FOR COMPLAINANTS ON FINAL HEARING. has been actively employed in the preparation of this defence, visit- ing witnesses, etc. (complts, iii, pp. 2152, 2271, 2291). THE ULTIMATE POSITIVE FACT IS, THAT NO PARTNER OF DRA‘VBAUGH’S AND NO \VORKMAN DURING HIS EMPLOYMENT AT THAT SHOP EVER TALKED THROUGH A TELEPHONE DURING THE TEN YEARS. Other Persons who would have tried a Telephone #148 had had one that would [folio—There are certain persons who, apart from any direct pecuniary interest with the claimant, stood in such relations to him and were men of such intelligence, that if he had had a practical speaking telephone they would have seen it, tried it, and taken an in- terest in it, and it would never afterwards have remained in obscurity. Prof. S. B. [{ez'ges has been spoken of by the defendants as a man raised far above the low level of their other witnesses. He is; but . his absence of knowledge is of itself fatal to the claimant’s story. i i In his deposition (a purely cumulative piece of testimony, and not admissible at that stage of the case) he states (defts, iii, SUl‘l)il, 95) that in 1859—60 he taught school at Milltown, and Drawbaugh then attended some lectures he gave on the physical sciences, and he he- came interested in the man. Drawbaugh then, he says, told him that he could drive a clock by electricity from the earth. Such a clock had been in use since 1850, and was described in an encyclo— paedia of 1852, which Drawbaugh borrowed at an early time, the date of which he cannot give (Drawbaugh, defts, ii, 968, ans. 984— 988; p. 976, ans. 1017). Drawbaugli’s own experiments on run- ning a clock from the earth were after 1867, and Prof. Heiges is probably mistaken. Mr. Heiges also says that Drawbaugh then spoke to him of the possibility in the future of transmitting speech. That was nothing; others had thought of this. Mr. Heiges then says that at a date which he cannot quite fix, but which he states in such relation to known facts that it would seem to be in July, 1872, he was at Drawbaugh’s shop with his brother-in-lzuv, Dr. Mosser, l t l l t i now dead. His whole testimony about it is as follows (defis, iii, i surhtl, 99) :-—— f l l l " Q. 30. While you were there at Mr. Drawhaugh’s shop with Dr. Mosser on that occasion, did Mr. Drawbaugh say anything to you about an invention of his; if so, what invention? SAMUEL B. HEIGES. 271 “A. Yes, sir; he spoke of and exhibited to me his talking 111a~ chine, as he called it. " Q. 31. Did he talk through it to you? “A. No, sir. " Q. 32. Did he at that time make any statement to you about it having been talked th1ough by him elt or othexs, or not? "A. He did; he said he 11.1d talked tl11eugh it, and some other parties had. " Q. 33. Did he say whether or not, when he and others had talked through it, it had operated so that the talk could be heard through it? "A. Yes, sir, he did; he said it had so operated. “ Q. 34. \Vii I you piease look at the machines now shown you, marked “A, B, C, F, and I, and state whethel you lecognize among them anything that you saw at Mr. D1awbaugh’s shop at the visit when you and Dr. Mosser we1e thele together. 3 “ A This is one th 1t I saw (taking 11p inst111ment C) “ Q. 35. How long 011 that occasion did Mr. Drawbaugh talk to you about his talking machine invention? “A. I suppose notU more than five minutes; our conversation occurred after Dr. Mosser and he were through. _ " Q. 36. Did you take the talking machine in your hand at that time, or not? “A. 1 did ; I remember I caused the diagram to vibrate, just as I do now, by placing my finger against it and pressing it in. " Q 37. What kind of a diaphragm was on the machine at that time —metal, or wood, or membrane, or what? “A. A metal diaphragm. “ Q. 38. Did Mr. Drawbaugh say anything at that time about how the sound of the voice operated the machine; it' so, what, so far as you remember? "A. Yes, sir; I remember he said the voice produced pulsa- tions. " Q. 39. Did he, or did he not, make any reference to the use of a magnet in connection with the machine? " A. Yes, sir; he spoke of applying both magnetism and clee~ tricity. “ Q. 40. Are you able to say whether there was 01' was not, at that time, a small elcctro—magnet, with its poles in close proximity to the armature on the diaphragm? " A. I am not able to say whether there was or whether there was not. “Q. 41. When did you next see this machine m1'11ked ‘C’ after the visit of Dr Mosser and yourself to Ma. mebaugh’s shop at that time? "A. '1 his morning in Mr. Jaeobs’ s office." "X Q. 48. Do you remember Whether you have been in Shire— 272 BRIEF FOR COMPLAINANTS ON FINAL HEARING. manstown or in the vicinity of Milltown since you stopped teaching school there on any occasion except those you have mentioned? "A. I have been to Shiremanstowu several times a year. I have been to Milltown but once that I can remember.” "X Q. 51. When you saw the instrument C at Mr. Drawbaugh’s shop, was it in the same condition it is in now; and if not, what were the differences? "A. As I remember, it was in the same condition as now, but not so much soiled, and did not have the writing upon it, which, I presume, has been put upon it by the examiner.” This gentleman is one of the two or three men who ever visited that shop of sufficient intelligence to understand a speaking tele- phone if explained to him, to appreciate its scientific and practical interest, and not to be hoodwinked by any sham trial. Drawhaugh was an old friend, yet the effect of what took place was that he laid the instrument down and walked away; did not ask to have it tried, did not ask its modus operandz'. For ten years after- wards, several times a year, he visited his father—in—law’s, a couple of miles from there, and never saw it again or heard of it again. Now, whatever he may think he finds in his memory twelve years afterwards, these facts make it certain that the impression produced on him at the time was not that of a practical speaking telephone. He would be a better witness for the defendants than most of their people, if they could win their case by proving the existence of the framework C without a magnet; but his story disproves that con- dition of things which the law requires them to prove. The same remark may he made about Capt. Moore, another man of intelligence, whose business carried him continually to the shop from early in 1875 to midsummer or later of 1876. Then the claimant came in direct contact with certain electricians about electrical matters. David Auflauck testifies that about 1874 he saw Drawbaugh ex- perimenting with a magneto key, which he describes in detail. Drawbaugh’s own deposition agrees with this as to structure and date (defts, ii, 930—5). Hauek then continues about it (complts, ii, 794) :— ' “ A. Some time after he had it completed, —he had been trying it in the shop for different purposes, —-he expressed a desire to try t A. R. KEIFER Drsrnovns THE CLAIM. 273 a it on a long line of Wire. Feeling interested by his request for per- mission, I applied to George A. Zacharias, who was the agent of the Cumberland Valley Railroad at Mechanicsburg, asking him to give Mr. Drawbaugh an opportunity of testing his instrument. He said he would, and some time after Mr. Drawbaugh and I went to the telegraph office, and Mr. Zacharias connected the instrument to his l ‘i l: Vol-Iv nv‘ smmam. T Am,» mammtmn “mm, “A "nan...”Hmri M were ”Q. 46. When you first learned of the speaking telephone com- ing into public use in this country, can you state Whether you, at that time, remembered and spoke of the fact of your having seen an electric or magnetic talking machine long prior? “ [Same objection] "A. Yes, sir; I referred to this instrument incidentally in class, and, it' I mistake not, publicly at Gettysburg at the teachers’ cou- vention, in connection with the instrument used to represent sound by flashes of reflected light. "Q. 47. State Whether that was or was not prior to your knowl- edge of any litigation involving Mr. Drawbaugh’s telephones, and prior to any communication ever made to you in regard to your tes~ timony or knowledge of the D 'awbaugh machine. ; “ [Same objecti0n.] _ I ”A. Before my classes, it was prior to any knowledge of litiga- tion in the case; at Gettysburg, it may have been subsequent to that knowledge, as I have lectured there several years, and cannot : definitely fix the occasion. All references were prior to any intima— 5 tion that I should be called upon to testify in this case.” about 1874,7to shoivhim a telegraph instrument; this was, in fact, about the time Drawbaugh completed his magneto key. His testi— mony is as follows (complts, ii, 1280) :— "Q. 4. Do you remember his showing you a telegraph instrument in Harrisburg, and if so, state What you remember about it? i "A. I remember him coming to me at or in the immediate neigh— l borhood of the Pennsylvania passenger depot, Harrisburg, aud asking l 1‘ me to look at an in~trument that he had, which, he let] me to infer, was t something that could be used as a fire alarm, to give signals over a j wire without any battery. I looked at it, and he showed me the opera- t tion of it, making sortie signals by it to show that, if I recollect rightly, ‘ it could be used as a telegraph instrument also. This was, I think, 272 BRIEF FOR COMPLAINANTS ON FINAL HEARING. manstown or in the vicinity of Mllltown since you stopped teaching school there on any occasion except those you have mentioned? "A. I have been to Shiremanstown several times a year. I have been to Milltown but once that I can remember.” "X Q. 51. “71101) you saw the instrument C at Mr. Drawbaugh’s shop, was it in the same condition it is in now; and if not, what from early in 1875 to midsummer or later of 1876. Then the claimant came in direct contact with certain electricians about electrical matters. David AhHauck testifies that about 1874 he saw Drawbaugh ex— perimenting with a magneto key, which he describes in» detail. Drmvbaugh’s own deposition agrees with this as to structure and date (defts, ii, 930—5). Hauck then continues about it (complts, ii, 794) :— I “A. Some time after he had it completed, -——he had been trying it in the shop for different purposes, — he expressed a desire to try A. R. KEIFER DISPROVES THE CLAIM. 273 it on a long line of wire. Feeling interested by his request for per- mission, I applied to George A. Zacharias, who was the agent of the Cumberland Valley Railroad at Mechanicsburg, asking him to give Mr. Drawbangh an opportunity of testing his instrument. He said he would, and some time after Mr. Drawbaugh and I went to the telegraph office, and Mr. Zacharias connected the instrument to his relay or sounder, I don’t remember which, and endeavored to write with it, as he said, but said it was too cumbersome and unwieldy: he could not do much with it. I went away after about ten minutes, leaving Mr. Drawbaugh there.” This is not contradicted in any way. According to his story, he had then possessed for six or seven years practical speaking tele- phones, and the one thing he wanted (see Eyster, defts, iii, snrbtl, 891, and Eicholtz, 1'6. 154) was to try them on a. line. Here he went to the railroad telegraph office to try an instrument on a real line, — and he carried a telegraph key. Andrew R. Kez'fem was one of his friends in Harrisburg. Mr. Keifer was superintendent of telegraphs for the Middle Division of the Pensylvania Railroad. He had furnished and put up the fire alarm for the city of Harrisburg. He had fitted up the railroad oflices with electric clocks. He kept a small electrical-supply store in Harrisburg. He was partner of the firm Hahl, Keifer & Co. from 1867 until 1881; they had works at Washington and Baltimore. and their business was the manufacture of " burglar alarms, electric hotel annunciators, and fine electric work for the government, in— struments for the Signal Bureau, Patent Office models,” etc. (Keifer, complts, ii, 1283, ans. 20). Drawbangh came to him in Harris— burg, at a. time he cannot precisely fix, but which he thinks was about 1874, to show him a telegraph instrument; this was, in fact, about the time Drawbaugh completed his magneto key. His testi- mony is as follows (complts, ii, 1280) :— "Q. 4. Do you remember his showing you a telegraph instrument in Harrisburg, and if so, state. what you remember about it? "A. I remember him coming to me at or in the immediate neigh- borhood Ofthe Pennsylvania passenger depot, Harrisburg, and asking me to look at an in~trument that he had, which, he led me to infer, was something that could be used as a fire alarm, to give signals over a wire without any battery. I looked at it, and he showed me the opera- tion of it, making some signals by it to show that, if I recollect rightly, it could be used as a telegraph instrument also. This was, I think, 274 BRIEF FOR coMPLAINANTs 0N FINAL HEARING. in Mr. VValz’s Wholesale liquor store, near the railroad depot, or a room in the immediate neighborhood.” "Q. 6. Did Mr. Drawbaugh ever bring to your office the works of an electric clock to snow you? "A. I have a faint recollection of his doing so, as I recollect of telling him at one time that there was an objection to a certain me— chanical part in it, which he said he would, or had, remedied in a largerclock or another clock. The objection, I think, was the second hand going in a contrary direction from the usual course. "Q. 7. Did Mr. Drawbangh on other occasions, from time to time, come to your oflice or meet you around the depot, and speak to you of electrical matters? "A. Yes, sir; he came there on different occasions, how often I can’t say. He got pieces of wire from me and would speak of elec- trical matters, more especially so of things appertaining to what he had. constructed, and how he came to his electrical knowledge, and so on,” Now here, if ever, was a man with plenty of telegraph line at com- mand, to whom Drawbaugh spoke of other electrical matters, but never of the telephone. The defendants had seen Mr. Keifer, and done their best to find something in his memory before the complain- ants went near him. But his testimony now about Drawbangh is (complts, iii,'1280) :— "Q. 8. Did he ever bring an electrical speaking telephone to u? yoi‘A. No, sir; not to the best of my recollection. "Q. 9. Did he ever tell you before this suit began that he was at work upon, or had been at work upon, an electrical speaking tele- phone? This controversy began in 1880. "A. Not to my recollection.” " Q. 12. If, before you had ever heard of electric speaking tele— phones elsewhere, Mr. Drawbaugh had brought you a set, or had told you that hehad a set, by means of which conversation could practically be carried on along a wire, do you think that would have impressed itself on your mind so as to remaln fixed there? “ A. I think it would, without a doubt, if he had made it plain to me that such could be done, or had explained the means.” The Value of this witness does not rest on mere memory, but on the facts. For if Drawbaugh had showed him a telephone, Draw— baugh’s history would have been changed from that day; and if he had had one, it would have been shown. S. 0. 'WILSON DISPROVES THE CLAIM. 275 Mr. Simon Cameron Wilson is another and extremely. important Witness of this class. He is now mayor of Harrisburg. Mr. Wilson. from 1864 to about the beginning of 1875, was the superintendent of telegraphs for the Northern Central Railway Com— pany at Harrisburg. At the beginning of 1871, his company bought out the electrical workshop and supply establishment of Mr. J. J. Clark, a well-known electrician at Harrisburg, and thereafter it vas used as a repair shop for Mr. VVilson’s department and under his charge. Drawbangh came there often during the next four years, at the end of which time the shop was given up. He talked with Mr. Wilson about electrical experiments. He got from him second— hand electrical material which the railroad would give away, — parts of batteries, coils, magnets, etc. He brought to Mr. Wilson one electric clock, and told him of another. He brought him his mag- neto electric key. But he never brought a telephone, and never spoke of one. Mr. Wilson’s testimony in this respect— and the same is true of Mr. Keifer’s -——does not rest upon any mere memory. He was an elec- trician of experience. He had control of plenty of lines, of batteries and other appliances, and of an electrical workshop. He was young. The least mention of such an invention would have led him at once to see it, to test it, to use it, and to supply the means to patent and introduce it. As his name denotes, he at least had friends in a Har— risburg family enterprising and rich. The president and vice-presi- dent of his road, with whom he was in daily intercourse, were Mr. D011 Cameron and Mr. D11 Barry (now vicerpresident Pennsylvania Railroad). If Drawbangh had had a telephone which he desired to “ freely communicate to the public,” he could not have helped men— tioning it and showing it to Mr. Wilson, — and then the whole course of his life and history could not have been what it has been. Both Mr. “Wilson and Mr. Keifer have occupied and now occupy positions which give to their depositions absolute weight. They can— not be pushed aside. Mr. Wilson was examined and cross-examined with Drawbaugh in the room, and it is evident that Drawbangh’s counsel cross-exam- ined all at sea, and that his client could not suggest that he had ever mentioned the subject, nor any reason why he should not have done 276 BRIEF FOR COMPLAINANTS ON FINAL HEARING. so. It was a trying position for counsel, but it was a plain confes- sion that Drawbaug/z knew the testimony was true, and could not answer it. The defendants have not dared to put Drawhaugh on the stand since. WVhat folly to talk of any desire or attempt on Drawbaugh’s part to bring an alleged telephone into notice, or obtain aid—what fully to pretend that he had at this time a telephone—in the face of such a state of facts ! Of course Mr. Wilson could not remember exactly how many times Drawbaugh came to him, nor the date of each particular visit, nor What passed at each, but the main facts which we have stated were firmly recollected and are proved. The principal parts of his deposition are (complts, iii, 2059) :— "Q. 11. ‘Vhile it [the shop] was under your charge [beginning of 1871 to early part of 1875] did you know Daniel Drawbaugh, and (lid he ever come lo see you at your office or at the shop? "A. I first made Mr. Drawbaugh’s acquaintance in that shop, and he visited me afterwards, during the time I had the shop, various times. " Q. 12. Did you ever have any dealings with him, or did he ever get any electrical supplies from you at the shop? "A. I never had any business dealings with him, further than his Visits to the shop at dilfereut times. I gave him such little articles from our ‘scrap’ as he desired. By ‘scrap ’ I mean odds and ends of fist—oi? telegraph machines and battery material, which were of no use to the company. " Q. 13. Did he visit you very seldom, or quite a number of times? "A. He visited the shop quite a number of times.” “ Q. 15. Did he ever bring to you to show any electrical contri— vauces which he professed Were of his own construction? “A. 011 one occasion he brought me a clock, which he claimed he had constructed, —an electrical clock. “Q. 16. Did he ever bring you an electrical speaking telephone or talking machine? "A. No, sir.” "Q. 17. Did he ever say to you or ever give you to understand that he had invented or that he had an electric speaking telephone or talking machine? “ [Same objectz’on.] " . No, sir; not during that time that we are speaking of, or that we had this shop. . .. AW ~11. “menswear ‘ s. 0. WILSON DISPROVES THE CLAIM. 277 " Q. 18. Did he ever speak to you of any such thing while you were connected with the railroad before you [wt in 1876 or 1877? " [Same objection] "A. We never had any conversation 011 any subjects except in the shop named, nor at any time within that period did he speak 011 the subject of telephone to me. " Q. 15*. Were your relations with him such during that time that if he had invented and had in his possession practical operating speaking telephones which he was desirous of making known he would have mentioned the subject to you or not? " [Same objection, and the question further oljected to (is not calling for evidence, but mere inference, opinion and guesswork. “ The examiner is requested to note that after the objection was made the question was modified by the insertion of the words ‘which he was desirous ofmahing known,’ and the examiner so certifies, which words arefurther objected to by defendants’ counsel as vague and indefinite] "A. There was no reason why he shouldn’t, and I am very much surprised that he didn’t. " Q. 20. If at any time while you were connected with the tele- graphs he had brought to you a practic: li speaking telephone and told you that his great object and desire was to patent it 21nd make some f01 use, would he have had difficulty in obtaining flom you the needed as51st21nce? " [Same objection. "A. If he had demonstrated that such an instrument was a suc- cess, I for one would cc1tainly have aided him, and he would have had no difficulty 111 getting all the aid he wanted. " Q. 21. If, at any time While you we1e in chaIge of the telegraph, Drawbaugh had mentioned to you that he had invented and made a practical and successful speaking telephone, 21 knowledge of which he was willing fleely to communicate to the public, Would you ha\e. rested with such a more mention, 01 would you have taken steps to see the thing and ascertain for yourself what it was? "11.1 would have most certainly invited him to bring the thing own to my shop or office, 01 taken Some other the: 111s of seeing it. " Q. 22. If, While you had chaIge of the telegraph, he had h1ougl1t to you a pl ictical 21nd succes ful ope1at1ve telephone, and told you he was willing to allow the public to f1 eely test the same by using it, would you have been contented by merely looking at it, or would you have tlied to talk through it? "[The last objection is repeated ] "11.1 would have most certainly had him to test it. “ Q. 23. State whether or not you had the necessary convenienries and appliances for the purpose in the building where your shop and oliicc were. “ A. We had, that being the general headquarters of the tele- graph service of the company.” 278 BRIEF FOR COMPLAINANTS ON FINAL HEARING. " X A. 38. I purchased for the railroad comanpy the shop named in this testimony, on the 10th of December, 1870, the bargain being closed a short time thereafter, on the arrival ot'Mr. Clark, its owner, who was absent from the city, Harrisburg. It was a considerable time after I had taken possession of the shop that I first met Mr. Diawbaugh there; it may have been a year, possibly more. To the best of my recollection, Mr. Drawbaugh first came to the shop ac— companied or introduced by John II. Sutt, a telegraph lineman who was under my jurisdiction. I find the date of the purchase of the shop from records in my possession.” " X A. 43. At the different interviews had with Mr. Drawbaugh, the drift of the conversation between Mr. Drawhaugh and myself was generally upon electrical matters. I recollect of him speaking on one occasion (what interview I can specify) ; he spoke about an electrical clock, or clock which he operated by an earth battery. During these interviews he brought me a clock to the shop, —an ” [The above answer is objccled to by Illr. Dixon as not responsive t0 the question] “ electrical clock, which was operated through the medium of another clock. In these interviews he also spoke of the construction of a magnet, for some purpose or other, of great power. He also asked me, at different times, for cost of material relating to electrical machinery, and which I freely gave him, and was glad to help him in his Work whenever I could. I have a faint recollection, but I am not absolutely sure, that he at one time showed me also a. piece of machinery which I can b$t describe as an oscillating magnet. My reason for ansWering this question in the manner in which I do is for the reason that I cannot separate the different conversations we held upon the subject, and am therefore compelled to consider them collectively.” . "A711. 67. He visited me once, —— his first visit, —when I became first acquainted with him, and also again to Show me an electric clock, and on another visit previous to the one last stated, he spoke to me of the clock that operated with the earth battery; and, again, on the occasion of his bringing me the oscillating magnet spoken ot‘, and at other times, when I gave him scrap, how often I cannot tell.” “ X Q. 86. IVould you have had any difficulty in getting those gentlemen to have furnished means if you had shown them a practi- cal and successful operative electric speaking telephone in 1873, for example? " A. I don’t believe I would; when they came to understand the invention, I feel satisfied they would have gone into it. " X Q. 87. \Vhat is your full name? "A. Simon Cameron \Vilson. " X Q. 88. Mr. Daniel Drawbaugh has been present in the room during your cross-examination, has he not? “A. Yes, sir.” STEES’S TELEGRAPH LINE. 279 Mr. William J. Stees, of Harrisburg, was another person he came in contact with. Mr. Stees was the superintendent of the sawmill of the Harrisburg Car Company’s establishment. That company had several shops in different parts of Harrisburg, and about 1871 or 1872 connected these difl'erent shops by a telegraph line. They tried Phelps’s printing instrument, the ordinary Morse instrument, and so on, but had great trouble from lack of experienced operators. Mr. Stees himself tried to learn, but was not very apt, and soon gave it up. All this is stated in the deposition of R. B. Ziegler, of the Western Union Telegraph Office at Harrisburg (complts, ii, 1025). Drawbaugh testified (defts, ii, 1002, X 1132) that before 1867 he got up a stamp canceller for Mr. Stees, who paid the expenses. Here was his acquaintance, a man who had a private telegraph line, Who could not work Morse instruments on it, and therefore the very man of all the world to put on telephones if anybody should furnish - them to him. When telephones came to Harrisburg, after Mr. Bell’s invention, Mr. Stees was the very first person to put them on his private line (see Ziegler’s deposition). Why did not Drawbaugh carry the telephone there, if he had it? Strangest of all, he did carry a telephone to Stees’s office and endeavored to try it on Stees’s line; but that was after Mr. Stees had telephones already in use. Drawbaugh testified expressly (ans. 1391, defts, ii, 1049) that he first saw speaking telephones a short time after they were introduced at Harrisburg, the one he saw being the Phelps or " snuff—box ” in- strument, so called, and that he saw it at Stees’s office. This is proved by Mr. Ziegler’s deposition to have been an instrument placed there in the earlier part 0f1878. Drawbaugh testified, p. 1047, that he brought an instrument over to Stees; he does not pretend that he did this at any early day, but he speaks in the same connection of leaving at Stees’s oflice the instruments J and N, one of which is not pretended to have been made before 1879. It appears from Mr. Ziegler’s deposition, which is not contradicted, that Drawbaugh came to the office of the Telegraph Company at Harrisburg with Mr. William J. Stees, in the spring or early summer of 1878. Mr. Ziegler also testified as follows (complts, ii, 1035) :— "A. 83. After the telephone had been introduced in Harrisburg and in Mr. Stees’s oflice, upon several occasions when visiting our 280 BRIEF FOR COMPLAINANTS ON FINAL HEARING. ofiice, Mr. Stees spoke to me about Mr. Drawbaugh getting up a telephone, and used language somethinglike the following: ‘ Never mind, old Dan Drawbaugh is getting up a telephone that will beat yours.’ This was during the spring of 1878; that was before I was introduced to Mr. Drawbaugh.” "R X Q. 85. Did Mr. Stees ever inform you about his visiting Mr. Drawbaugh’s shop and seeing speaking telephones there long before the Bell telephone was introduced into use at Harrisburg? "A. Not that I remember.” Mr. Stees is dead; he was killed on the railroad in the first half of 1881, while we were taking testimony in Harrisburg. If Draw— baugh had ever carried a telephone to his place and tried it before the date of Bell’s patent, it would have been proved by himself and plenty of witnesses. It would have led to a different history. It must be taken as a settled fact that Drawbangh never took an in— strument over there to try on a line. What, then, becomes of this pretence that during all those years he had such instruments, and his great desire was to try them practically on an actual line? He went to Zacharias, to Keifer, to Wilson; he knew Stees, but he never took to any of them a telephone to try. All that Stees had to say to the telephone company in 1878 was that Dan was then getting up a telephone which will beat yours. This is like Dr. Moffitt’s knowledge that Drawbaugh could not antedate Bell. Mr. Theop/m’lus Weaver, of Harrisburg, has been a patent solicitor since about 1865. As early as 1867, and for a number of years after that, he and Mr. Drawbaugh used to meet rather frequently and talk about inventions and patents, and Drawbaugh from time to time employed him to ascertain the state of the art on various matters. In 1878—9 he took out some patents on Drawbaugh’s inventions. The fact of the intimate character of their relations is proved, not merely by Mr. 1Veaver’s memory, but by facts drawn from Draw- baugh in his cross—examination and shown by official records. Mr. iVeaver was one of the half dozen men of education and turn of mind appreciative of inventions whom Drawbaugh came in contact with. No one could doubt that he was one of the men to whom such an in- vention as the speaking telephone, if it existed in practical shape, would have been at once disclosed. He testified in terms, — and if he had not so testified the Court would assume it,—that if Drawbaugh had brought to him a telephone, and wanted to get a patent on it, T. WEAVER. —— ISAAC LLOYD. 281 he would not have hesitated for a moment, either for a share or interest in it or upon credit, to do the work of taking out a patent on it. He was a man who was himself an inventor, had taken out many patents of his own, and been interested in the inventions of others in a speculative way. All this Drawbaugh knew. It is not thinkable that he could have had what he says he had in the way of speaking telephones and not told Mr. Weaver. Weaver testified that he never heard of the thing. V Upon Drawbaugh being asked whom he had spoken to about patenting his telephone, he mentioned several persons, and not Mr. lVeaver, although there was evidence in his cross—examination of his relations with Weaver. If such a thing had come to Weav- er’s knowledge, it would not have rested as a mere incident to be passed by, but an application would have been on its Way as quick as it could have been drawn. Drawbangh could not have had the instruments which he says he had, or any operative instruments, and Mr. Weaver not have known of them. It is certain that Mr. Weaver did not know of it; he swears he did not; Drawbaugh does not contradict him, and the whole tenor of Drawbaugh’s deposition admits it; for, if he had, Drawbaugh’s history from that day forth would not have been what it is. Mr. VVcaver’s deposition is dis- cussed in full in the appendix, p. 381. Isaac Lloyd was another friend to whom he would have disclosed it. Mr. Lloyd was for many years principal of one of the public schools of Harrisburg, was familiar with the ordinary applications of electricity, and himself somewhat engaged in its use. He did a good deal of practical electro-plating for the hardware dealers and others. He engraved and gilded the glass of the ease and dial of Drawbaugh’s large clock; he was one of Drawbaugh’s old friends, who went a number of times to Drawbaugh’s shop to see his inventions, and whom Drawbaugh went to see from time to time; who had conversations with him, and helped him in various ways; once lent him money to buy castings. Yet through all these years he never heard anything of a telephone (app. p. 433). M3 regular Customers never saw Telephones. —— He did machine— shop work for a number of persons, and they should know whether he had telephones, and they Would be the persons he would natu- 282 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. rally go to for aid. We have no way of finding them all. In answer to a question (dcfts, ii, 918, X-int. 932), all that he is able to name are Samuel Hertzler, Daniel Hart, Geo. B. Heck, W. R. Gorgas, John Free, Jackson Free. We called Hart, and he testified that he never knew of a talking machine. The defendants called Hertzler, Gorgas and Jackson Free, and did not ask them ah: ut telephones. John .Free is living near at hand, and the defendants have urgent need to call him to support A. Ditlow (q. a. app. 471—2), but did not. Geo. B. Heck is dead, but his brother, John Heck, administrator and successor, owner and frequenter of Draw- haugh’s shop, and his hireling, A. Frownfelter, were called by the defence for other matters, and know nothing about telephones. If this is a sample of his customers, there was no telephone knowledge among them. 1 The defendants have, as we have already stated, one difficulty which they must remove before anybody can believe their story, and that is, that While on the one hand they allege that he had practical speaking telephones, on the other hand they admit that he neither manufactured them, put them to practical use, nor patented them. They seek to excuse this on the ground of poverty; but how can poverty explain away the fact that he went to Zacharias and Keifer and Wilson, and perhaps Stees, with a telegraph key but not with a telephone? How can poverty explain away the fact that when he walked over to Harrisburg, three miles from his house, and saw or could have seen either of these acquaintances, he did not take in his pocket a pair of the perfect instruments, as they allege, which he already had, and, at least, ask leave to try them on some of their lines? The truth of the matter is, such men as Keifcr, Wilson, Zacharias, Stees, and Weaver could not have known ofa telephone, or his history from that time forth would have been different from what it is. The Magneto Ii’éy. —The Court will consider with care the full force of what he did with and about his magneto key ((1. 71. p. 322, infra). According to the witnesses (quoted on pp. 80—6, supra), Drawbaugh’s great invention (whatever it was) was to supersede the telegraph; in that lay a good part of its value. He had made this invention which they saw was the telephone; had completed instru— THE MAGNETO KEY. 283 ments fit for commercial use (so they pretend). What next? Of course he made another pair,——just duplicates, —— a day or tvvo’s work, and put them to use, or offered them for sale? Not a bit. He was so poor. so tied down to gainful Work to earn bread, that he could not do that. What he did do was to spend time and money in inventing or at least in making a new kind of key, to work without a battery —for the lelegmp/z which he had superseded. Then he took it to the telegraph office, and when, on trial (p. 322, infra), it was found not worth having, did he try the telephones he had which super— seded it? No, he invented a new kind of magneto key, and made it—ten times as much work as a telephone; and then, still on account of his poverty, he took that to Harrisburg, and put it in a shop window, and showed it to his friend the school teacher, Mr. Lloyd, and to his friend Mr. Andrew Keit'er, superintendent of tel— egraphs for the Pennsylvania Railroad, and constructor of the Har- risburg fire alarm, and to his friend Mr. Simon Cameron Wilson, superintendent of telegraphs for the Northern Central Railroad. Plainly his “practical, operative electric speaking telephones ” only spoke to the bovine intellect and in the air of his shop. Docmnentary Evidence exists and is not produced—The first papers which connect his name with the telephone are the publica— tions of 1878, referred to p. 208 ed 869., supra, which speak of him as an improver and not as an originator. How does it happen that the defendants have produced not a single scrap of paper for the whole nine years prior to the Bell patent? The Court will not believe that it is because his inventions, as a rule, were not committed to paper in some shape. He has not changed his shop since 1867 ; he has moved his house; but he was a man who had a private office at his shop, where he kept all his papers and everything. There is not a pretence that he has lost anything, or had a fire, or any trouble of that kind. The defendants evidently felt troubled about this, and tried to meet it by his oath. Drawbaugh’s deposition (det'ts, ii, 782) : — " Q. 26. Have you been in the habit of making and preserving any written memoranda or records to show the dates of your various inventions and improvements in telephones? 284' BRIEF FOR COMPLAINANTS ON FINAL HEARING. "A. No, sir; not further than that I used to make plans on drafting boards for working by. ” Q. 27. Were they preserved? "A. No, sir.” That is not true. He was in the habit of making sketches. Lory (defts, i, 235) professes to swear to one from memory, and Draw- baugh testifies of it (defts, ii, 785): —- “I was in the habit of making sketches or drawings at the time when 1 would be working 011 any inventions; not only this particu- lar one, but all inventions.” Nor have they been destroyed. In the summer of 1879, he pro- duced a book with a telephone sketch in it. In the summer of 1879 he gave a deposition in the faucet inter- ference case. This deposition was put into his hands on cross— examination in this case, admitted by him to be correct (defts, ii, 1070, x-ans. 1497), and is printed in complts, iv, exhibits, be- ginning on p. 91. ()n p. 99, he said that, from time to time, he made sketches of his faucet, and he produces a memorandum book marked " E,” in which is one; that was in 1867 or thereabouts. He then produced another sketch, and he says of this (p. 100) : — "A. 68. It was made about 1871 or 1872; I can’t get within a year, perhaps; it is an old sketch. There are a number of other sketches in the same book of other machinery made about the same time; they are all old sketches. "Q. 0'9. Will you produce any other sketches? "A. There is a sketch that I made about the time that I was experimenting on telephones or phonographs, about 1874 to 1876. “Q. 70. To the best of your knowledge, when was that sketch made? “A. About 1876; it might have been made before. "Q. 71. \Vas it made later than 1876? "A. To the best of my knowledge, I don’t think it was. " [Boo/G and s/tetc/z Ofered in evidence, marked ‘G (D. 0. M.).’ 1V {Mess produces five s/tetc/zes on envelopes and letter-8.] ” " X Q. 166. When and where did you find all these letters? “A. I searched through papers after finding out of the present interferentcs. Some ofthe letters 1 found in a box containing let- ters and papers. There may have been five hundred letters and papers in that box. , “X Q. 167. Have not these letters and papers you speak of been lying around the shop in such a manner, loose, so that they as-” may .. meammhm ~ . ‘ N0 PAPER PROOFS FOR THE DEFENDANTS. 285 might have been picked up and these sketches made upon them, at any time between the date of their reception by you and the time you produced them here, or have they been boxed up tightly so as not to be generally accessible? " A. I’don’t think they have been handled for a long time, as the box containing them was under a table in an adjoining room of the shop that I generally worked in. They were not boxed up tightly.” " X Q. 151. (Sketch and hook G handed witness.) Give us, if you can, the exact date, or an approximation of it, when that sketch Was made. " A. That might have been made three, four or five years ago. I go by the nature of the drawings. 1 mean the telephone drawing and the old plan of faucet. I was working on the telephone about [that] time.” Now, how does it happen that, though he had plenty of sketches of his faucet, and a box containing perhaps five hundred letters and papers, he has not produced a single one relating to the telephone which he pretends to have worked on more than on all other things put together? It cannot be because he did not make them; it can— not be because he destroyed all those and kept others. The Court can come to only one conclusion, and that is that the sketches of the different instruments would somehow have dates connected with them which would be fatal to his case. Why does he not produce the book which he had in 1879, with a sketch of the telephone in it? It is not- on file in the Patent Otfice in the interference case, because we have the certificate of the commissioner (complts, iv, exhibits, p. 87) that what is attached is a true and correct copy of “ all the evidence filed by said Draw— baugh in his own behalf and now on the files of the office.” The book undoubtedly, like most exhibits used before the Patent Office, was either never filed at all and produced by counsel on the hearing, or withdrawn at the close of the hearing; but whatever disposition has been made of it, it is not true that Drawbaugh never made, and not true that he never preserved any sketches of his telephones. Drawbaugh’s Scope as an Inventor. — Long known as the inventor of ingenious improvements and contrivances, the speaking telephone was far beyond the scope of his mind or his knowledge. It is apparent from the statement of the invention made on p. 38, supra, that the speaking telephone is an inventiouwhich goes far outside 286 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of the reach of any mere mechanic however ingenious. It involves an understanding of the nature of articulate speech as distinguished from mere musical sound ; that is, of the quality or form of vibration as distinguished from the number of vibrations. The one step to be ' u made to pass from the old Clrcult-breaking contrivances of Rels, Bonrseul and others to the speaking telephone was to thoroughly comprehend and feel this characteristic of form or quality and trans- fer it to and by electricity,——transform it into and reproduce it from exactly the current described in Mr. Bell’s claim, to wit, one undu- latory in its character, and the undulations of which corresponded to sound waves. It is impossible that the invention should have been conceived without some adequate knowledge of them; it is also cer- tain that when a conception of these electrical undulations was reached a fair electrician and mechanic could not be many years without making a practical instrument. The story of Drawbaugh, We might almost say the boast of Drawbaugh, is not that he taught himself the needed knowledge, but that he never had it (defts, ii, 805, 900). That, starting with ordinary skill and education, he should have acquired the requisite knowledge himself, should have made for himself the discoveries of Helmholtz, would be too phenomenal to be credible; but that he should have made this invention without having that knowledge, self-taught or learned from books, is simply impossible. The defendants undertake to have Drawbaugh state something of his acquirements. In his deposition (defts, ii, 792—3 and 804—5) they asked him some questions intended and calculated to develop his knowledge of " the vibrations of the vocal organs in the act of ‘ J a) speaking. That which he states in his 79th answer is the absurdity of ignorance, and in his following answers it appears that all he knew about sonorous vibrations was that the high sounds bad a larger number of Vibrations per second. That is not the beginning of what needs to be known to make a speaking telephone. Through that long deposition there is not an intimation of how it was that this great conception came to him, nor even hoW it was that he passed from one form of instrument to a better form, except as to some mere details. One of the greatest inventions contained in the modern telephone, after the great conception of the whole, is in the microphone transmitter, which varies the current by vary- DRAWBAUGH’S SCOPE AS AN INVENTOR. 287 ing the contact pressure of two hard bodies, such as carbon. The defendants once asked Drawbangh how this great conception came to him. We have already quoted the passage, but it is worth quot- ingr again (defts, ii, 804): 1— ”Q. 150. Do you remember how you first obtained knowledge of that fact, that low conductors, when under pressure, Would eon- duct the current more freely than when not under pressure; that is t) say, did you learn it by reasoning it out, and then testing it, or by accidental discovery, or by reading it somewhere, or by hearing 1t from Some one, or how? “Ans. I don’t remember how I came to it; I had been experi- menting in that direction; I don’t remember of getting at it by acci- dent either—don’t remember of reading it ; I don’t remember of any one telling me of it; I don’t suppose any one told me.” He invented the telephone, they say ; his deposition shows that he never had the knowledge indispensably requisite. \Vhen asked the question, he does not know how he obtained it. Now, whatever else an inventor forgets, he never forgets what led to the invention, if he be the inventor and not the copyist. If this man’s story be true, he worked out for himself Helmholtz’s discoveries in the theory of tone, he worked out for himsclf the magneto-electric discoveries of Faraday and ingenious applications of them by Wheatstone and Sie- mens; yet he cannot tell how any ofthcm came to him. But we know that, laying aside for the moment the telephone, the subject of this controversy, every other contrivanee which involves anything of the nature of discovery, which he asserts to be original with him, and which he palmed on” on his neighbors as original, had been known and published years before he touched those subjects. And that before he was brought before the public as a claimant about the telephone, everything which he said he had done had been known and in public use. He has ofl’ered the test and given the result of it. In the advertising card of 1874—6, and in the faucet interference of 1879, he asserted his standing as an inventor, and the contrivances on which he rested his claim to that title, and which defined the range of his power. The telephone is not among them. If a man having such an instrument did so conduct himself (and there is no doubt about the conduct), some cogent fact must have 288 BRIEF FOR COMPLAINANTS ON FINAL HEARING. existed; and that fact would be the best and the only explanation of his course. No argument or suggestion of adroit counsel will fill the gap. If there was such a reason, Drawbaugh would go on the stand and state it. He does not. The books are full of cases, at law and in equity, Where the failure of the party to prove explana— tory facts is held to be sufficient evidence that none exist. t l l l Wifiwumwm_ ,. 4.. _ .__._...M. WITNESSES FOR THE COMPLAINANTS. 289 THE COMPLAINANTS’ WITNESSES. O The strength (or weakness) of every defence of alleged prior in- vention and use rests upon the probative effect of the conduct of the parties, and upon the consequences which flowed or did not flow from the acts and knowledge of the claimant. The nature of this invention is such that no instance can be found where that kind of proof can weigh so strongly as here; no case can be found where the facts, admitted and established beyond controversy, are more conclu- sive in their character. Those are the best proofs; there can be no others so weighty on either side; no conspicuous patent was ever overthrown on any other. Besides these, the record brings before the court more than seventy- five men, who must have known of a telephone if one existed, and many of whom would undoubtedly have acted upon that knowledge if there had been such a thing to know of. We refer to the Drawbaugh Manufacturing Company, its mem- bers and workmen. If there were nothing to appeal to but their bare memory, the proof which that affords would be decisive against this defence. But to that is added the fact that this com- pany was formed to manufacture his inventions; that when, in 1870, after three years, they reorganized as a corporation, they took his name, “mebcmgh Manufacturing Company,” and re-elected him " master mechanic and draughtsman.” They sent him to exhibit at the State fairs; they advertised themselves as manufacturers of his inventions, which they enumerated; they sought for more to construct, in order to employ their abundant capital and machinery; he offered them others, but no telephone was asked for or suggested; they knew of none. The Mill Bus]; Company’s testimony is also fatal to his pretensions. T/ae Educ/cs were enterprising men with capital, who, in July, 1873, invested $7,000 on his inventions; all that he had they knew. Their testimony and the crowning proof from the depOsitions in the f'tucet interference prove that they did not know of telephones, and that he had none in their time —say 1873—4-5. 290 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Drawbaug/z’s advertising card of 1874«5—6_ gives a list of his in- ventions; that no telephone is among them is legally and morally conclusive. The Axle Company, covering the crucial period, affords proof against him which cannot be gainsaid. The best man of that com- pany, and one of the most intelligent of their witnesses, saw the tin can B in working order at a time which, even if at the date alleged, is destructive oftheir story. He never was even asked to listen at a telephone; though it is alleged that the shop. was full of perfect working instruments, he never saw them. \Vhat did attract his attention was Drawbaugh’s magneto key for a fire alarm; he has confounded this With a talking machine, — a fact full of signif- icance when we come to estimate the value of the depositions of less intelligent witnesses, who profess to remember but one thing, and assert that to be a talking machine. Finally,we refer to the unmistakable meaning of Drawbaugh’s behavior in 1876, when Mr. Bell’s invention became known, and to his explicit and often-repeated statements, proved by writings in 1878, substantially that he wished he had invented the telephone, but that he had not. The defendants’ story is—and it is by that that they are to be judged —-that everything he did was known to the whole of the community. We have elsewhere (p. 99, supra) shown that the nature of the defence they had got to prove did not permit them to take any lower ground. They have crystallized their position in that respect by the deposition of George Hosier, who liVed at Eberly’s Mills, March 5, 1872, to March 25., 1873, and at no other time (No. 190, defts, iii, surbtl, 367; app. 651) ; it contains the following (p. 369) :— “ Q. 15. From what you yourself heard at that time, while you lived there, would you say that Mr. Drawbaugh’s talking machine was at that time a. matter of common and general knowledge in the community there, and a subject of general conversation, or not? " [Objectedto as incompetent and calling for mere inference, not fact.] “A. It was, sir.” If there was an actual practical telephone at that shop, every man in that little community of not over twenty houses must have known all about this thing, as one villager knows about the unconcealed COMPLAINANTS’ WITNESSES. 291 and engrossing afl'airs of his neighbor. Now, the defendants them- selves have done all that we need to falsify that story. [Iosler and Deilz. —There is no better proof on that score than this same Hosler’s deposition. His next answer was : —- “ Q 16. Do you remember any particular remark made by any person about Mr. Drawbaugh and his talking machine while you lived there: If so, will you please state who the person was that made the remarks, and how he came to speak on the subject at that time, and what he said? " [Objected to as inquiring for mere hearsay.) “ A. Mr. Emanuel Dietz: I heard him make a remark in my shop about Mr. Daniel Drawbaugh and his talking machine. Drawbaugh was coming along in a stooping position, and Dietz said, ' Here comes Dan Drawbaugh, the damned tool, — he will go crazy trying to make a machine to talk to people away off.’ " Q. 17. You say Mr. Drawbaugh was coming along in a stoop- ing position at the time, and you illustrated it by rising in your chair and bowing your head down as ifin deep thought: does that describe the appearance of Mr. Drawbaugh at the time? "A. Yes, sir.” Emanuel Deilz is proved to have been a frequenter of Draw— baugh’s shop and now lives in Milltown (John Kahney, complts, iii, 2042 ; app. 466). Scandalously improper as this hearsay testimony is, we may use it against the defendants. It shows that he knew, and that the group of villagers whom he addressed knew, that there was then no machine that would talk; that the best that had been done was so far from speech that the hope of accomplishing it was almOst proof of lunacy. This was in the fall of 1872. The story of the defence is that Drawbaugh had then had practical instruments In» div—A "A...“ own .I . | Geo. Hosler (No. 190, defts, iii, surrbtl, 370) :— “ Q. 25. From the extent and frequency of the talk in that com- munity at that time, while you lived there. about Mr. Drawbangh s talking-machine invention, do you thlnk that anybody could have been in the Village and talked w1th the people there much at that time without hearing something about Mr. Drawbaugh s talklng ~ ' r not? mil‘ClElglijegled 250 as leading, and as incompetent, because calling for ~ 1. me: (Xpmlwthidk he would have to be what you would calla deaf man, in my opinion about the matter. Of course I could not say whatother people heard or did not near, but, in my opinion, th’ey ought to have heard something about it, livmg close around there. 290 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Drawbaugh’s advertising card of 1874—33—6, gives a list of his in— ventions; that no telephone is among them is legally and morally conclusive. The Axle Company, covering the crucial period, afl'ords proof against him which cannot be gainsaid. The best man of that com- pany, and one of the most intelligent of their Witnesses, saw t1 e tin can B in working order at a time which, even if at the date alleged, is destructive of their story. He never was even asked to listen at a. telephone; though it is alleged that the shop was full of perfect working instruments, he never saw them. What did attract his attention was D‘rawbaugh’s magneto key for a fire alarm; he has confounded this with a talking machine, — a fact full of signif- icance when we come to estimate the value of the depositions of less intelligent witnesses, who profess to remember but one thing, and assert that to be a talking machine. Finally, we refer to the unmistakable meaning of Drawbangh’s behavior in 1876, when Mr. Bell’s invention became known, and to his explicit and often—repeated statements, proved by writings in 1878, substantially that he wished he had invented the telephone, but that he had not. The defendants’ story is — and it is by that that they are to be judged ——that everything he did was known to the whole of the community. We have elsewhere (p. 99, supra) shown that the nature of the defence they had got to prove did not permit them to take any lower ground. They have crystallized their position in that respect by the deposition of George Hosler, who lived at Elierly’s Mills, Mureh 5, m m .1 flash?” . .44. “MW“ mammfl‘mmtfimmw) COMPLAINANTS’ WITNESSES. 291 and engrossing affairs of his neighbor. NOW, the defendants them- selves have done all that we need to falsify that story. 1108767” and Deitz. ——There is no better proof on that score than this same Hosler’s deposition. His next answer was : —— “ Q. 16. Do you remember any particular remark made by any person about Mr. Drawbaugh and his talking machine while you lived there: if so, will you please state who the person was that made the remarks, and how he came to speak on the subject at that time, and what he said ‘? " [Objected to as inquiringfor mere hearsay/J “ A. Mr. Emanuel Dietz: [ heard him make a remark in my shop about Mr. Daniel Drawbaugh and his talking machine. D ‘awbaugh was coming along in a stooping position, and Dietz said, ' Here comes Dan Drawbaugh, the damned tool, —— he will go crazy trying to make a machine to talk to people away ofl'.’ “ Q. 17. You say Mr. Drawhaugh was coming along in a stoop- ing position at the time, and you illustrated it by rising in your chair and bowing your head down as ifin deep thought: does that describe the appearance of Mr. Drawbaugh at the time? "A. Yes, sir.” Emanuel Deitz is proved to have been a frequenter of Draw- baugh’s shop and now lives in Milltown (John Kahney, complts, iii, 2042; app. 466). Scandalously improper as this hearsay testimony is, we may use it against the defendants. It shows that he knew, and that the group of villagers whom he addressed knew, that there was then no machine that would talk; that the best that had been done was so far from speech that the hope of accomplishing it was almOst proof of lunacy. This was in the fall of 1872. The story of the defence is that Drawbaugh had then had practical instruments for five years, and that large numbers of people had talked through them with ease. We begin to get a little insight. Jere Fry, defts, i, 156, says that he listened in 1875; being asked whether Drawbaugh talked into the machine, he only says he sang and “I talked with several persons that it is a very good thing if he gets it accomplished.” W. H. Decker (clefts,_ii, 1151), visit in 1873. “ Looking around some little time, I put my hand on this tin can; I says, ‘ What do you call this?’ ' Oh I’ he says, ‘ we are going to talk through that some of these days.’ ” J. A. Sprenkel (defts, iii, surbtl, 367) says that the general 292 BRIEF FOR COMPLAINANTS ON FINAL HEARING. report from 1868 to 1876 was “ not believing that such a machine could possibly he invented ”; they regarded Drawbaugh as foolish. Of course. But a man is not thought crazy or foolish for having a practical telephone. These are specimen bricks of rumor from the defendants’ record. The defendants took the following objection (defts, iii, surbtl, 383) : — “X Q. 41. that was it that was said about Drawbaugh? ” [ Objected to (by defendants’ counsel) so far as anything that was said is intruded to be used to establish any fact except the fact that Drawbaugh’s talking machine was a subject of conversation in the community, and was known and tal/ced about at that time, that fact betng evidence and all beyond that being mere lzearsag.]” This objection was taken the next day after Hosler testified. S. M. Hertzler (app. 243; p. 248, supra), one of the most active and prominent men of that village for twenty years, has been called by them; he knows nothing about telephones. William R. Gorgas (app. 691 ; p. 248, supra), a near neighbor, a rich man, at one time a partner of Drawbaugh’s, getting his mail in the village, and knowing everybody there, has been called by them; he knows nothing about telephones. William L. Gorgas, his son (app. 223; p. 248, supra), also at one time partner of Drawbangh’s in the Faucet Company, superin- tendent and bookkeeper of that company, has been called by them; he knows nothing about telephones. Ezra F. Gilbert (app. 667), for twenty years a resident of that village, the man who lives in “ the big stone house,” has been called by them ; they had him prove a date‘ when a laborer Worked for him, but asked him nothing about telephones. Amos Frownfelter (app. 477; p. 248, supra), who for three years lived in the village, working on the farm of George Heck, where Drawbaugh’s shop stood, which Heck owned, has been called by them; they proved by him that be hauled away a sawmill, and we proved by him and IV. 0. Frownfelter, his son, that neither ofthem knew anything about telephones until 1878, and that the defendants knew this before they put Frownfelter on the stand. John F. Lee (app 643 ; p. 242, supra), of New Cumberland, three miles away, at Whose planing mill Drawbaugh, for ten years, has THE NEIGHBORS DID NOT KNOW OF IT. 293 been in the habit of doing repairs, was called by them; he proved a book entry and a signature; he was not asked about telephones. John B. Ifeck (app. 667), brother, administrator and succes- sor of George Heck, who owned Drawbaugh’s shop, for a good while lived in the village, and was proved by them to have been a frequenter of the shop, was by them called to prove when his brother died, but asked nothing about telephones. Plainly he knew noth- ing. William Heck (app. 466) was proved by the defendants on cross— examination of our witnesses to be a man who frequented the shop and Who 10-day lives in Milltown. They did not call him. Emanuel Dietz (app. 466) was a frequenter of the shop, who now lives, and for years has lived, at Milltown. They asked various Witnesses what they had heard Dietz say, but they did not call him. Plainly the fact is, and the Court, according to the established rules ofjudicial decisions, must take the fact to be that he knows nothing about telephones which would support the defendants’ case. This is conclusively proved by the remark attributed to Deitz by Hosler. Samuel H. Bates (app. 704) testified for them that his knowledge of the talking machine chiefly was from hearing Sweitzer, B. S.Wilder and Sam. Zacharias, keepers of the taverns and of the warehouse at Bridgeport, respectively, speak of it; they do not call either of these men, and it is proved about one of them, Wilder, that he is now living in the neighborhood. “Tilliam Natcher (defts, iii, surbtl, 151) says that \Vilder came down in the train with him when he came to testify. Daniel Fetlrow (app. 94), the blacksmith, and his family lived under the same roof with Drawbaugh from 1868 until 1876. VVhat- ever was done must have been known to them ; whatever was known to others certainly was known to them. It is proved as a fact in the case that William Feiirow, the son, who is now twenty-six years old, was a constant frequenter of Drawbaugh’s shop, now lives in the neighborhood, and has been within this last year at Drawbaugh’s shop talking with the witnesses about the case (v. pp. 95—102, about William Fettrow). They did not call him. Daniel Fellrow knew nothing about any telephone until at least eight years after the time when, according to Drawbaugh’s story, he wumei: .mw...r~ “wag“... .. 294 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. had one that would practically talk, and all the community (so he wishes the Court to believe) knew of it as an accompli~hed fact. George Leonard (app. 237, 481, 493, 742), from 1871 to 1878, lived in the village, owned the grist mill there, and about half of the houses; was a friend of Drawbaugh; lent him money from time to time; went with him to the Centennial. He oasuallyheard some- thing of a talking machine; though a witness for the defendants, he is not willing to state that it was before 1877 ; and Drawbaugh never applied to him for help upon the subject. Mrs. Daniel DrawbaugIL.—Perhaps more conclusive than any— thing is their failure to call the claimant’s wife. They have had witness after witness, against objection, state what they heard Mrs. Drawbaugh say. She is a competent witness. Her husband is not a party to the record. They have called many women in defence. The remarks which have chiefly been attributed to her show her dis- gust that Drawhaugh should spend his time at the ,shop experiment- ing instead of upon gainful work. The important question is, experimenting upon what, and when? The proof relating to her is generally that she referred to all kinds of experiments, though some Witnesses profess that it was the speaking telephone. The dates of this alleged hearsay from her are very vague, except from one wit- ness, who is worth all the others put together in this respect. Henry F. Drawbaugh testified (app. 114, ans. 46, defts, i, 419) :— "Q. 46. Did you ever hear your brother Daniel’s wife talk about his spending his time experimenting; if so, how often, and during what years? "A. I have heard her make mention of it very often during the year 1876, and from that up, not from that back; she said she wanted him to stop his fooling and go off; he had good ofl'ers to snperinteud for other firms, and then they would try and live better; they had been living so poor for many years on account of his experimenting.” Is that true? because, if it is, it is conclusive against their case; if it is not, would she not contradict it? They have not called her, and the books are full of authorities that the failure under such cir— cumstances to call such a person is conclusive proof that her testi- mony, if given, would be adverse. Moreover, the case is full of allegations (and it is essential for them to prove them) that, during COMPLAINANTS’ WITNESSES. 295 all these years, his thoughts were on nothing but the telephone, and that his family were in a state of most abject poverty. His Wife knows whether that is true; and if it be true, she, better than any- body, knows the details and facts which would force conviction. Yet our evidence is, that his family was as well kept, as well clothed, as any in the village; and they do not call her. Witnesses called by the Complainants. “To have called, among others; many witnesses Whose position was such that if a telephone had existed at Drawbaugh’s shop they would have known of it, and, knowing of it, would have patented it or put it to use. Andrew R. Keifer (app. 334, 358, 426, p. 273, supra) was superintendent of telegraphs of the Pennsylvania Railroad at Harris— burg, and partner in the large electrical manufacturing firm of Hahl, Keifer & Co. Simon Cameron Wilson (app. 334, 358, 428, 741, p. 275, supra), now mayor of Harrisburg, was for many years superintendent of telegraphs for the Northern Central Railway at Harrisburg, and connected with a rich and enterprising family, owners of that road. Drawbaugh knew them, got them interested in him, obtained electrical supplies from them, told them of electrical experiments he was engaged upon, brought them electrical contrivanees he had made; but no telephone ever came into their field of knowledge; if it had, his history would have been changed. T/Leop/n'lus Weaver. —Perhaps no single witness brings to notice facts more conclusive than those which concern Mr. Thcophilus W'eaver (app. 381; pp. 220, 280, supra). We beg the Court to read the abstract in our appendix, and the whole deposition. The facts about him are briefly stated on pp. 220, 280, supra. If true, they are conclusive; that they are true is proved not only by Vt'eaver’s conduct, but by the specific admissions on Drawbaugh’s cross—examination and by public records. In addition todthe fact that Mr. Weaver knew nothing of a tele— phone before Mr. Bell’s patent, he proved the statements Draw— baugh made to him in the first part of 1878, that he had no standing to be called the inventor of the telephone. This, though the least; 296 BRIEF FOR COMPLAINANTS ON FINAL HEARING. ‘ valuable part of the deposition, is enough ; it is so fortified by facts, by similar statements made to others, and by the failure cf the defendants to even attempt to contradict or explain, that it stands beyond the reach of dispute. The complainants, besides the witnesses already referred to, have called a great many whose occupations or convenience or entertain- ment carried them to Drawbaugh’s shop, many of whom were men of the immediate neighborhood, certain to know everything that was generally known, and most of them of a much higher grade of intel- ligence, responsibility and standing than those whom the defendants rely on. They are all of them men of whom we believe, and who believe of themselves, that if they had known of a speaking tele- phone at Drawbaugh’s shop before such instruments were heard of elsewhere it would not have been to them a mere triviality, but would have impressed them, and in many cases they would have acted upon it. Many of them remember that when they first heard of telephones in the world, it was of a telephone made and used in the East, or exhibited at the Centennial, and not in their own village ; a novelty from abroad, and not an old and familiar story. That is a fact which a man can neither be mistaken about nor fail to remember. They also testify, from long acquaintance, to Drawbaugh’s pecuni- ary condition; that he was not the pauper he has been represented, but was a mechanic of skill, and, to all outward appearance, at least so far as the knowledge of the village community could go, — which is further than any other knowledge g0es,—as well off as any of his neighbors. The depositions of these witnesses are fully stated in our appen- dix with quotations ; we here give merely the salient points. Cyrus Bowman (app. 459, 709, 739) was the miller from the spring of 1874 to March 1, 1876, when he moved away. He knew ‘Drawbangh well, was somewhat at his shop, and Drawbaugh used to go frequently to the mill office. The mill office, of course, was one of the two or three loafiug places in town, and gossip which was known anywhere would be known there. Bowman is sure that he never heard anything of any telephone while he lived there, and 1117‘s. Bowman, a very clear—headed woman, confirms him. Bowman, as miller, had considerable dealings with Drawbaugh, and his testimony, COMPLAINANTS’ WITNESSES. 297 supported by his books, is that be trusted Drawbaugh a good deal —for as much as he wanted, —— never hesitated to let him have any- thing on credit, and that his family was as well off and his house as well furnished as those of any of the neighbors. Benjamin Eaufiinan (app. 462) lived all his life close to the village, and moved away in the spring of 1878. He was fairly fa- miliar with Drawbaugh’s establishment, but never heard of any tele- phones there. E. F. Harm (app. 462) was employed on the farm of Samuel Hertzler, one of the defendants’ witnesses. Hertzler, it will be re- membered, was a member of the Faucet Company, a wine grower and dealer; certain to have known everything that went on; called as a witness by the defendants about some small details, but not interro- gated about a telephone. Harm worked for him from March 1, 1875, to March 1, 1877, —the period alleged to include D and E. He was intimate at Drawbaugh’s home, and visited there a good deal. Was at his shop from time to time, and saw several of his contrivances, but never heard of a telephone. His cross-examina- tion was conducted on the usual plan of assuming that, as there were some small things of Drawbaugh’s there which he did not remember, he would probably have forgotten any telephone; and finally when asked whether, although he never heard of them, it did not follow that there might not have been plenty of them there, and answered very correctly, " I don’t know as it does, but they would hardly have kept it as quiet as it was, as much as I was around Mill- town.” In a village of seventy—five inhabitants there are no secrets. He says that Drawbangh’s house was well furnished, and the family seemed as well provided for as any of the neighbors. Joseph Ditlow and Abraham Dz'tlow (app. 463, 582—603) are two brothers, who were both of them somewhat, and Abraham a good deal, at Drawbaugh’s shop. They were visited by the complainants and their recollection asked ; they had never heard of any until early in the spring of 1877. After thinking it over six months, they came to Philadelphia and so testified in the most positive terms, stating when, how and from whom they first heard of it. After some in- fluences, which must be read at large in their testimony, the defend- ants got them back on the stand and had Joseph Ditlow admit. that, 298 BRIEF FOR COMPLAINANTS ON FINAL HEARING. from what other people had told him since, be supposed that he was satisfied that he had known of telephones there; that Was as far as he could go. Abraham was kept at Harrisburg by the defendants for three months; his time and his board were paid for by the de- fendants during all that time, before they would allow him to go on the Witness stand. He then testified that he spent the most of one winter, when he was out of work (1874—5), at Drawbaugh’s shop, continually experimenting with him on telephones during that period. But this story, contrasted with what Drawbangh and his nephew, then occupied in the shop, knew and swore to, and tested by Ditlow’s own examination when he came on the stand the second time, is plainly to be seen to be a piece of manufactured testi- mony. (See app. pp. 582, 603.) Jacob Evans (app. 463, 563, 569, 575, 580) was a brother-in-law of theirs, who pursued the same course, first testifying for one side and then for the other, and with about the same results. His case is a little worse, however, because, when the defendants were takian their testimony in chief, they visited him, could bring no telephone to his recollection and did not call him. A year afterwards the complainants visited him with the same result, and six months after that he testified for them, giving a good deposition. Eight months after that he came back on the stand and professed to swear, though he hardly did, that he had talked through one in- strument, which he could not identify, and, indeed, hardly remem- bered when he had talked through it. Orlando B. Kat/meg (app. 464, 603—616) was another witness who, after six months’ reflection, testified for the. complainants that his first knowledge of the telephone was in 1876 or 1877. He lived in the West; after testifying he went to Eberly’s Mills, saw a good deal of Drawbaugb, but remembered nothing. He then went to the West and wrote to Drawbaugh that. it had come to his mind that he saw and used a telephone there in 1875, and he would so testify. He then wrote to the complainants that he remembered and was certain that he had seen and used a telephone there in 1873 (for dates did not seem to trouble him much), and that Drawbaugh wanted him to come and so testify, but that he could keep out‘of their way and not do it, if the complainants so desired. The complainants not WITNESSES FOR COMPLAINANTS. 299 having offered him the inducement which he apparently sought for, he came back and testified. His testimony, with that of some other members of the Kahney family, is considered in the app. pp. 603— 616. ’ Some of his brothers testified for the defendants, and one of them in a manner equally startling. Augustus It’d/may (app. 613), called by the defendants only, was twice visited by them when taking their testimony in chief in 1881, but he could remember nothing useful. In May, l883, after the com- plainants had finished, he was met by their representative, and then stated that he worked for the Axle Company about ten days in the spring of 1875, to help hoist in their machinery; that if there had been any telephones in there at that time he Would have known of them,—ar.d certainly he would, because during four years before that he had been a frequenter of the shop, living in the village; but he said that he never saw any then, and that he first heard of Drawbangh’s having one when he lived on a certain farm, which was in 1879. He not only stated this, but it was written out and he signed the paper. Six months later, and after the perversion of his brother Orlando, he appeared for the defendants and swore that he perfectly remembered seeing during the time of the Axle Com— pany, and while he worked there, just the instruments which the defendants wanted to prove. When confronted with his written statement, he said that he believed that statement at the time he made it, but that his memory had become refreshed since. We look upon this man as a witness for the complainants whose real recollection disproves the existence of any telephone there at the time of the Axle Company. John Ka/meg/ (app. 465, 616), the father of this young man, ap- pears to be a. man of a somewhat different stripe. He was called for the complainants. From the spring of 1871 to the spring of 1875 he was a very frequent visitor at Drawbaugh’s shop, averaging, per- haps, once a month. He seems to have a sharp and retentive mem- ory, for hardly any witness had described with more detail and accuracy the things he saw there; and he had the somewhat rare faculty of distinguishing distinctly between what he remembered and what he did not remember. From 1875 to 1878 or 1879 he 300 BRIEF FOR COMPLAINANTS ON FINAL HEARING. was at the shop somewhat, but not often. He never saw any tele- phones there, and he remembered perfectly well that his first knowl- edge of the existence of such a thing as a telephone was from reading in the newspaper about the time of the Centennial that two men, by the name of Bell and Watson, had made a telephone and talked over it from Boston to a place eighteen miles outside. Deubtless, this was the talk from Boston to Salem in February, 1877. This deposition of John Kahney’s is very important. He was very frequently at the shop up to 1875. His power and precision of observation, the tenacity and accuracy of his memory, the sharp- ness with which he draws the line between memory, which he uses, and guess—work, which he rejects; the certainty that he would have seen and used the thing ifit had existed, and remember so striking a if he had seen it; his distinct memory as to when, where and how he thing first learned of a speaking telephone, together with the fact that in a long cross-examination Drawbangh’s counsel could not suggest a single occasion when Drawbaugh had shown him a telephone, make his deposition stand as a narration of uncontroverted facts. Their force is conclusive. W. Sadler (app. 468) is a well-to-do farmer, living a few miles from Drawbaugh, who has been a good dealinterested in inventions. In 1868 he was one of the Mill Bush Company, which invested about $1,500 in employing Drawbangh to build special tools and machin- ery and to embark in the manufacture of mill bushes. He raised half the money himself. In 1871 he furnished the means for his son Jacob to become a partner of Drawbaugh’s in manufacturing hydraulic rams; he afterwards had Drawbangh put in some steam piping for him. Besides these particular things, he has had a gen- eral knowledge of Draw baugh and his concerns. He never heard of any telephone until long after the Bell patent. George W. M’umper (app. 86, 469), a rich farmer, living about a mile from Drawbaugh’s house, has lived there twenty years ; has been in the legislature; is 110w and for twelve years has been president of the school board; is rather prominent in politics, and knows every- body at that end of the county and all their affairs. He is an old acquaintance of Drawbaugh’s; he is not only a man of means, but rather open handed and free in lending money and 'indorsing for WITNESSES FOR COMPLAINANTS. 301 others, ——just the man whom Drawbaugh would have been likely to go to. Drawbaugh alleges, though Mumper does not remember it clearly, that at one time he went to him to borrow some small sum, and Mr. Mumper did not have the money convenient at that 'mo- ment. There is no pretence that he asked him to lend him money fora talking machine. Mr. Mumper had been visited by the de- fendants before we saw him, but they could produce no recollection of a telephone in his mind. He never knew of the telephone until near the time when the controversy began. i H. S. .Rupp (app. 435) has already been considered as one of the prominent members of the Faucet Company (pp. 248—252, supra). He also states, and nobody denies it, that Drawbaugh came to him twice at least to show him certain inventions he had made. One was a weather gauge, or, as they called it, a barometer, which he gave to Rupp, in the hope that Mr. Rupp would recommend it; another was some kind of an electric signalling contrivance. Mr. Rupp is a very well-to—do uurseryman and florist, has the largest establishment of the kind in the country, and, from his deposition, is plainly a man of education and clearness of head. The defendants had been to him half a dozen times at least before we went near him, trying to get him to say something about the telephone or about Drawhaugh’s poverty. They had him and Hertzler and William L. Gorgas meet at Mr. Gorgas’s house, in the presence of Drawbaugh’s two counsel, to talk over the matter about poverty, but they did not call him. We called him. He had heard of Drawbaugh’s telephone, and had talked through it, and he knew when it was. He knew that he had previously talked through a string telephone at MechauiCsbux-g; and that was known to be in the spring ot'1877. He knew the Occasion when he talked through the string telephone at Mechanicsbnrg; it was when he was buying some pipe for some new greenhouses. He remembered that the instrument he listened at at Drawbaugh’s was the tin can B. .B was therefore mebangh’s show instrument in 1877, when Mr. Rupp heard of his telephone. His deposition is re- markable for its clearness and precision, and the conscientious and thoughtful care with which he scrutinizes his memory. A. L. Rupp (app. 474), brother of Henry S. Rupp, is a man who went to Drawbaugh’s shop more or less for various jobs, repairs for 302 BRIEF FOR COMPLAINANTS ON FINAL HEARING. farm machinery, etc., and knew Drawbaugh well. He remembers well when he first heard a speaking telephone in Drawbaugh’s shop. It was when he went to get knives ground for a fodder cutter, which he did not buy till 1877. He remembers also that before he knew of any telephone at Drawhaugh’s he had known of string telephones in the adjoining village, Shiremanstown, where he lived; they were there in 1877. George 0. Rap}; (app. 474—5), his nephew, who lived with him for a good while, and also lived with other farmers nearer to Draw- baugh’s shop, testified to the same effect. He knew of the telephone at Drawbaugh’s shop for the first time While grinding his uncle’s fodder—cutter knives. Ilenrj/ lVez'da'g (app. 476) was a brother-in-law of theirs; at dif- ferent times has been a farmer; at one time kept a hotel in Harris- burg. He has lived about a mile and a half from Drawbatigh’s shop, and has had considerable dealings with him. In 1871 Drawbaugh put up a hydraulic ram for him; afterwards he put in some steam-, ing apparatus, and from time to time changed the piping of this. He was at Drawhaugh’s shop somewhat and knew something of his other inventions; never heard anything of the telephone until a recent period. Jacob Neidig (app. 475), his son, keeps a store in Harrisburg; he lived on his father’s farm ; was at Drawhaugh’s shop more than his father was, because he was the one who went there whenever any . work had to be done on the farm machinery, repairing pipe, etc. He is an active—minded and intelligent man, has a good memory of the dilferent things he saw and knew of at Drawbangh’s shop, but ' the telephone was not one of them until quite lately. A. Frownfelter~ (app. 477). The hired men who worked on Hook’s farm are Amos Frownf‘elter, who lived there from April, 1871, to 1874 in the house close to Dra‘wbaugh‘s shop and right in sight ofit, hardly more than a stone’s throw, and his son, William C. Frownl‘elter. Amos was not there at the shop’a great deal, but was there somewhat, and of course knew the general gossip of the little village. The defendants called him as a witness to prove when he hauled away the ruins of a certain sawmill, but did not ask him anything about telephones. The reason they did not ask him any- WITNESSES FOR COMPLAINANTS. 303 thing about them was because he knew nothing. We called him as a witness, and he so testified. He testified that when he first heard of Drawbaugh’s telephone it was from his son-in-lziw, George Reed, when the latter worked at Eberly’s Mills, in the beginning of 1878. le'llz'am O'. Frowafelter (app. 477), the son, was at the shop a good deal more than his father. He was about fifteen years old when they moved away. He knew nothing of any telephone there. He heard of it first from his brother-in-law, George Reed, in 1878. Daniel Hart (app. 478), sixty years old; farmer; has lived all his life at Milltown; was not very often at Drawbaugh’s shop, but he knew him; knew all that was commonly known in the village. Never heard of his having a talking machine until a short time before the controversy began. George Rowe (app. 478), twenty-three years old; laborer; born at Eberly’s Mills, and lived there until 1876. His father has lived there ever since. He was at Drawhaugh’s shop more or less, and knew generally what was going on in town. Never heard of any telephone. He was also called in part to contradict, and effectively did contradict, defendants’ witness Stephens (app. 76). William Nate/lei“ and Michael H. MUG/[67' (app. 479—484). —— “'illiam, the father, was the miller at Milltown from April, 1870, to September, 1870, and then from October, 1871, to August, 1872. He swore positively in the strongest terms that they had no knowl- edge of talking machines while there. He was also examined to dis— prove the statement that Drawbaugh made about him, to wit, that he paid him in 1867 or 1868 a large sum of money for an old debt; he said he never knew Drawbaugh, nor had any dealings with him until 1870, and never received from him more than $5 in cash. The defendants called back William Nateher and Michael Natcher, and some of William Nutcher’s children, and they testified that he and they knew all about telephones, and that some of the children talked through them. One of them, Mrs. Spangler, who was between ten and eleven years old at the time, was extremely positive about it; and they said that not only they knew all about them, but that Mr. Leonard, the mill owner, and Draw- baugh, proposed that one should be put in between the mill and 304 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. house, to enable Natcher’s wife to call him to dinner. That was a pretty startling piece of evidence, because it was the only time before Mr. Bell’s patent when a proposition was made or thought of by anybody for applying a. telephone to any practical use. It must have been a very good instrument to have led them to think of that. The house was only across the road from the mill, and any instru- ment that could answer better than the miller’s wife putting herhead out of the kitchen door and calling must have been a good one. Absurd as the story is on its face, it is thoroughly contradicted. It was made plain that Drawbaugh had not the slightest recollection of anything of the kind; and Leonard, who was the defendants’ wit- ness, not only disproved it by the deposition he originally Dave for them, but, called back on the stand for us, explicitly denied it. He had never heard anything of the telephone at that time, nor until years afterwards. The extraordinary story of this Nateher family told for the defendants, which is nothing but a deliberate falsehood, is examined on pp. 479, 485, appendix. The story that thisNatcher family now tell is, that when the father testified for the complainants all the members of his family not only knew that there had been telephones there, but discussed the matter with him, and he knew it well. Geo. W. Kissinger (app. 486) was the storekeeper at Eberly’s Mills from the spring of 1871 to the spring of 1874. Anything known anywhere would have been talked over at the store: it was not only the usual place of loating, as country stores are, but on Sat- urday evenings, there being no tavern in the village, Kissinger was in the habit of having refreshments of a harmless nature there, which alwaysiattracted the villagers. He, his three sons,—J0/m Ill. Kissinger, Geo. Frank Kissinger and Cyrus Kissinger,——and his son-in-law, James 0. Ziimnerman, all testify explicitly that, while they had tolerably fair knowledge of what went on at Drawbangh’s shop, they never heard anything of the telephone while they were there. The defendants had visited this family before we heard of them and had ascertained the best they could do. They could not persuade them to rernrmber any such thing. Geo. Ditlow (app. 486), who, until 1875, lived all his life a quarter or half a mile from Drawbangh’s shop, intimate in the village, though WITNESSES FOR COMPLAINANTS. 305 not a great deal in the shop, testified that he never heard of any tele‘ phones there before he moved away. He had been visited by the defendants before we went to see him. l/Villiam Darr (app. 487) lived at Milltown until 1871. He was called chiefly as to the matter of the death of George Miller, and the apple speculation. He testifies that while he heard of Drawbaugh’s other inventions, he neVer heard of a speaking telephone. He had been Visited by the defendants before We saw him. Sundry falsities in the defendants’ proofs corrected by depositions in complainants’ proofs. —\Vc have referred at length in the appen- dix to a number of matters which have already been noticed, and were destroyed by our proofs, to wit: George D. iliiller and his death, and the apple speculation (pp. 488—9), and sundry other extraordinary money errors in Draw- baugh’s deposition (pp. 492—5). See for this pp. 348—357, infra. Urias R. Nichols, defendants’ witness, swore that his only visit was in January, 1875, when it was in fact after the first of February, 1878 (app. 29—33, and 495-7, and p. 429, infra). Samuel Nichols, defendants’ witness, stated that he went in 1869 to Drawhaugh’s shop, and heard speech, going with “ my son-in- law ” who did not marry his daughter and who was not known to him until 1876; and that they heard speech at that time through parti— tions and entryways that were not built until 1875 (app. pp. 72, 497, 454, and p. 885, infra). Wilson JV. Miller (defts, i, 672). —- His father, J. R. Miller, ran the grist mill at Eberly’s 1\Iills from April, 1873, to April. 1874. He and his father would certainly have known of the telephone if it existed there. They do not call his father, but, in order to fix a date for a man who Worked for his father, they call the son to testify from memory when it was that the man Worked for his father. Then they proceeded to ask him about his knowledge of the talking ma» chine. They had him testify that he was employed as a station agent or warehouseman at White Hill Station, a mile from Draw- baugh’s shop, from January, 1876, to April, 1878. That while there one evening Drawbaugh came to the station and had in his hand a talking machine, and either then or afterwards proposed to 306 BRIEF FOR COMPLAINANTS ON FINAL HEARING. the witness to put up a line betwoen two of his father’s warehouses twu or three miles apart and equip it with these machines. The witness was not asked to identify or describe the instruments. On cross—examination he testified : —— “Q. 31. Please to describe the instrument you say he showed you at the station. “A. I don’t know whether I can exactly. "X Q. 32. Tell me what you remember about it. “A. It was a small wooden box with a tube to it to talk in. As near as I can tell, it was about five or six inches across and about an inch and a half thick.” This description corresponds somewhat to A. It distinctly does not correspond to D and E, or anything else in the casc,—it is very much .too large. 11" the dimensions of A were somewhat exagger- ated it would correspond to them. They asked him by very lead- ing questions, objected to as such, whether this exhibition and con- versation were not while Drawbaugh lived at Mechanicsburg, which was from April, 1876, to April, 1577, and the witness assented, but he had nothing to fix the time by. Indeed, when asked specifi- cally about the dates of this on direct examination (qq. 29 and 30), he said that he could not remember. Then the defendants on direct examination asked him the following (p. 674) : ~— ” Q. 28. Prior to his showing you the instrument at the railroad station, had you ever had any conversation with him about his talk— ing machines? "A. Yes, sir; but I was so little interested that I don’t know What it was any more; I might say that my business there was about some money that he owed my father for coal ; in the conversation I found that he had no money, and I didn’t ask him for it.” Clearly then he had been at Drawbaugb’s shop about some money which Drawbaugh owed his father, and then first heard of the talking machine, and this exhibition and conversation testified to were after that. Now when was it that he made that visit to Drawbaugh’s shop to get the money that Drawbaugh owed his father for coal? We called him, had him produce his books, and proved (complts, ii, 1108) that the first sale to Drawbaugh was on Dec. 14, 1876, $1.93; and the next sale, March 30, 1877, $2.81; Nov. 3, 1877, $1.57: the whole amounting to only $6.31. That the, first payment for them was on April 4, 1878, in full, He therefore certainly could not have DEFENDANTS’ WITNESSES AS CORRECTED.———MILLER. 307 gone to dun until 1877, and, as he kept selling on credit, it is not likely that he went to collect until after the last sale in November, 1877. The defendants subsequently recalled him in surrebuttal to explain what they seemed to think was a discrepancy, but not touch- ing this (defts, iii, 398). We are entirely content to leave it that, after Nov. 23, 1877, Drawbaugh first told Miller that he had a telephone; and that after that date the best he had to exhibit and the instrument which he was carrying in his pocket to exhibit was A, and not D and E. That is exactly what this witness testified when we fix the date by his own books, which the defendants did not produce, to the facts which they had him swear to. Consider what his deposition means with the dates thus corrected. It means that although his father ran the grist mill at Eherly’s Mills {or the year 1873, that the father had no knowledge of the talking machine, and the son first heard of it in the winter 1877—8. And then that A was the best thing Drawbaugh had to show him. How much truth does that leave in the story that D and E were shown to everybody three years before that, or in the story which they had Hosler swear to, p. 290, supra, that the talking machine was such a constant subject of talk in the village that any man must have been deaf not to have known about it? W. II. Decker, defendants’ witness. — Every (late and every fact stated by him which can be got at was proved to be wrong by wit- nesses called by us (app. 251 and 498, and p. 424, infra). Peter O. Zimmerman,defendants’ witness, swore that Drawbaugh told him that his telephone grew out of noting vibrations when Mr. Ilertzler’s daughter played on the organ. We proved that Mr. Hertzlcr never had an organ until 1875, about six years later than the witness thought (app. 119, 500). S. N Emminger (app. 500), clerk to the county commissioners, and formerly deputy sherifl“, gave an account of some geographical and kindred matters about the bridges and mills on the Yellowbreeches Creek. 308 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. Summary of witnesses whose personal knowledge disproves the defence. Witnesses who have been brought before the Court, and whose relation and position were such that they certainly would have known of practical operative telephones before the Bell patent if Drnwlmugh had any at the time in question, but did not know, are the follow- ing : — Witnesses called by the DEFENDANTS themselves, and not interro— gated about telephones. Neighbors, — , Ezra F. Gilbert, p. 292, supra; app. 667. “1/ Henry Miller, p. 349,-9sg9-m. Amos Frownfelter, pp. 292, 302, supra; app. 226, 477. Alfred Ditlow (son-in—luw of J. B. mebaugh), app. 583. Jackson Free, 1). 282, supra; app. 642. H. N. Bowman, p. 266, supra; app. 694. John F. Lee, p. 292, supra; app. 199, 643. W. N. Miller, 1). 305, supra; app. 218, 498, 695. John B. Heck, p. 293, supra; app. 466, 667. Members of the Faucet Company, —— Samuel M. Hertzler, pp. 248, 292, supra; app. 24?). William R. Gorgas, pp. 248, 292, supra; app. 691. Vl'illiarn L. Gorgas, pp. 248, 292, supra; app. 223. Called by the COMPLAINANTS, and who would have known during the time before the Bell patent, but did not. Isaac Lloyd, p. 281, supra; app. 367, 433. Theo. Weaver, pp. 280, 295, supra; app. 381. , Theodore Grissinger, p. 220, supra; app. 408. 7R. E. Shapley, p. 203, supra; app. 416. )0.) —)4J, Isaac D. Lundis, p./,\ , supra; app. 420. A. R. Kiefer, pp. 273, 295, supra; app. 334, 358, 426. S. C. Wilson, pp. 275, 295, supra,- app. 334, 358, 428, 741. H. S. Rupp, pp. 248, 301, supra; app. 119, 435, 500. Jacob Carns, p. 249, supra; app. 439. John F. Hursh, p. 248, supra; app. 443. David A. Hauck, pp. 257, 272, supra; app. 448. SUMMARY OF WITNESSES. 309 Samuel F. Hench p. 258, supra; app. 457. Davis Major, p. 258, supra; app. 454. Edward Nichols, p. 258, supra; app. 71, 454. Cyrus Bowman, 1). 296, supra; app. 460, 709, 739. Mrs. Bowman, p. 296, supra; app. 460, 709, 739. Benjamin Kauffmnn, p. 297, supra; app. 462. E. F. Harro, p. 297, supra; app. 462. John Kzthney, p. 299, supra; app. 465, 616, 741. “lilliam Sadler. p. 300, supra; app. 468. G. \V. Mumper, p. 300, supra; app. 86, 469. A. L. Rupp, p. 301, supra; app. 119, 474, 500. George C. Rupp, p. 302, supra; app. 475. Jacob Neidig, p. 302, supra; app. 475. Henry Neidig, p. ?02, supra; app. 476. Amos Frownfelter, p. 292, 302, supra; app. 226, 477. W. C. Frownfelter, p. 303, supra; app. 477. D. Hart, p. 303, supra; app. 478. - George Rowe, p. 303, supra ; app. 77, 478. George Leonard, p. 294, supra; app. 237, 481,, 493, 742. G. \V. Kissinger. p. 304, supra ,- app. 486, 501. J. M. Kissinger, p. 304, supra; app. 485, 501. Geo. Frank Kissinger, p. 304, supra; app. 486. Cyrus Kissinger, p. 304, supra; app. 486, 501. J. C. Zimmerman, p. 304, supra; app. 486, 501. George Ditlow, p. 304, supra; app. 486, 578, 742. W. Darr, p. 305, supra; app. 487. \V. N. Miller, p. 305, supra; app. 218, 498,695. In addition to these, there should be reckoned as witnesses the following persons, who, from their relation to Drawbaugh and the Shop, would hztve known of such a thing, if it had existed, While the failure of the defendants to call them, under the circumstances of this care, and with the effort the defendants made to flood the Court with an enormous number of depositions, must be taken to be per- sons who, in a position to know all about the matter, know that no telephones were there. Between thirty and forty persons, shown by pp. 245—269, supra, do belong to this class. It includes all those connected with the Faucet W? 310 BRIEF FOR COMPLAINANTs 0N FINAL HEARING. Company, etc. As to many of these the case is intensified, for it is proved that they are now living within reach, and a number of them, at any rate, seen by the defendants preparing their case. Among those for whose absence no possible excuse can be alleged are : — A. H. Gardner, p. 244, supra. Lafayette Crull, p. 244, supra. Mrs. Drawbaugh, p. 294, supra. William Fettrow, p. 293, supra; app. 102. Emanuel Dietz, pp. 291, 293, supra; app. 466. William Heck, p. 293, supra; app. 466. David Stevenson, p. 246, supra. John Sheely, p. 245, supra. Frederick Sheely, app. 470. . John Free, 1). 282, supra, a.pp /\ . 4/97/Iy:/// fl Dmid Dltlow, p 350, Mm; app. 583. acob Kline p. 266, supra, app. 205, 405. J. R. Miller, p. 305, supra, app. 218. To these witnesses should be added in effect the fact, which is more conclusive than any specific number of witnesses, that no one of any of the persons ever concerned or employed as partners or workmen during the ten years at that shop did ever, while so em- ployed there, talk, or attempt to talk, or were ever asked to talk, through a talking machine; only five out of thirty—five or forty pre- tend to have done so since. Here are about ninety persons who would have known of it if any practical talking machines had existed, and they did not. Prominent among them are the very classes named by the Supreme Court in Brady’s case. WVe have elsewhere commented on the especial value which the defendants“ conduct has given to our witnesses. About one half of those included in the foregoing list as Witnesses called by us had been visited by the defendants before we saw them. All were cross- examined at length. If Drawbaugh had any recollection of any communication or exhibition to any of them, it Would have been brought to their attention on cross-examination. No such attempt was made in a single instance except possibly in a feeble and inef— STRING TELFPHONES. 31 l fectual way in the case of Darr. Drawbangh has not ventured to go on the stand to assert any such instance or to contradict them. There has been an evident desire during the year occupied by the defence in surrebnttal to attack some of our witnesses, but it has been by weak attempts to get some one to swear to alleged casual remarks of a dozen years before. All these attempts have been frivolously weak, and some have been specifically overthrown. The alphabetical index to our appendix will enable the Court to reach any who may be referred to. Newspaper wmy‘are. — The matter of the defendants’ attempt to use the local newspapers to help their case and injure ours is referred to in the appendix, p. 459. In connection with them is the deposi- tion of the newspaper writer, Mr. Thomas M. Jones (pp. 167, 501). We called a numberof other witnesses on various points which are noticed in the appendix and generally in connection with the testi— mony of the witnesses who are effected or controlled by them. String telephones. ——From fferman J. Epplcr, one of our wit- nesses, called upon a collateral matter, the defendants elicited some testimony which is pretty important. At the outset we called him to fix the date of a certain hydraulic ram ; the defendants, who had seen him before we had, interrogated him about telephones, making him, of course, their witness, and theobjection was duly taken at the time. This witness said that at a date which he cenld not ex- actly fix, but which he had told the defendants was about 1873 or 187-1, he, in company with a man now dead, went to Milltown, and, at the shop of a man who was introduced to him as "Drawbaugh ” he saw a telephone, or, as they then called it, a kind of a speaking trnn'ipet. It was not used, but a person there was calling the atten— tion of Sadler, his companion, to it. In answer to the defendants’ questions, he also said that he had stated this fact to the complainants’ counsel, and that the complainants’ counsel had ridden with him through the town and had the witness point out the shop where this took place. And there the defendants left it. They left it as if this witness had seen the so-ealled talking machine at Drawhaugh’s shop in Milltown; as if the complainants had known of this and sup— pressed it. In the redirect examination the true facts came out. The shop which the Witness went to was a wheelwright’s shop of John 312 BRIEFTFOR COMPLAINANTS ON FINAL HEARING. Drawlmugh and his son, George Drawbaugh, brother and nephew of the claimant. The thing which he saw consisted of a teacup, and a box like a cigar box, the two connected with ash-icy. He carefully describes them in such a way as to show beyond the possibility of qties- 1310‘! that it was a string telephone. He went home and made one like it. Now here is a piece of evidence, elicited by the defendants themselves, from a man whom they had several times interviewed, and who, therefore, as matter of fact as well as of law, became their own witness, proving that, at a date which they desired to have the Court believe was about 1872—3—4, he saw a string tele- phone in the Village of Milltown, at the shop of John Drawbaugh, Daniel’s brother. Of course, if John Drawbaugh and his son George had one, there must have been one at Daniel’s shop, and undoubtedly it originated there. No one can overstimate the importance of 'sueh a piece of testi- mony. If it could have been contradicted it would have been. The defendants took testimony after that, but they did not put any wit— ness on the stand to deny it,:though they took testimony afterwards. This story was drawn from a man who was in law and in fact their own witness, and is not contradicted. Jesse Eic/toltz (defts. iii, surbtl, 152, 162; app. 629, 631), is a Witness for the defence who is bad for them about string telephones. They called him in the fourth year of the case, and he testified that he heard well through a talking machine at Drawbaugh’s shop in 1873. On cross-examination it appeared that the machinery was quiet at first and afterward Drawbaugh started it on purpose, and he states that he heard perfectly well. A string telephone would do this; any couple made out of B, F, C, I could not. He had told this to defendants’ counsel, but they had not put it in evidence. Then his wife was called to support him, and on her cross—examina— tion it appeared that he had been there in 1871 also. So he was recalled, and said that he had, and had so informed the defendants" counsel; they had not referred to that visit, and finally he testified to it (defts, iii, surbtl, 162) :— " As to that firstvisit, I would say that that first talking machine was entirely different from the second. The first consisted of a tin can and a glass tumbler. They were connected by a string; if I mis- STRING TELEPHONES. 313 take not, 2'15 was a string instead ofa wire. The second was con— nected by wire. That is my recollection; but it has been so long since that I Wouldn’t lacsitively swear that it was at string or a wire, but I think it was a string.” There is no mistaking that. It means string telephone. Natu- rally they did not want that visit put in. But he is their witness. David 111. Ditlow (defts, i. 508; app. 187), says that he saw and heard through a machine " about .1872.” He has examined all the exhibits, and cannot recognize any of them. But he knows what he saw and says of it. “A. 6. I came to the shop there, and he shOWed me a machine with tin tubes at each end, and a wire wrapped with string.” BRIEF FOR COMI‘LAINANTS ON FINAL HEARING. POVERTY AND RESOURCES. Before considering the defendants’ depositions in «lctail, it is worth while to see whether the claimant’s story can stand on his own record. A practical speaking telephone; possessed for nine years before Bell’s patent; invented and held by a man who believed that it was the greatest invention of the age, and would realize his fortune if he could patent it, who was burning with the desire to make it known; successful in obtaining aid for other inventions; but who never applied this to practical use himself; never offered a pair of instruments for use or for sale, and, though familiar with the Patent Office, and himself often a patentee, never presented himself at the Patent Office; this is his story as he tells it. The defendants know that these positive facts, unless explained away or their force broken, are fatal. They try to meet them by two allegations in the answer which are but dideielit forms of ex— pressing the plea of poverty, ~poverty which never stifled \Vatt, or Crompton, or Goodyear, or McCormick, 01' Colt, or Howe, or “rest- inghouse, or any real inventor, but which is the common apology of every ex post fuelo claimant. The answer says (par. 11, p. 7) :-— “ That said Drawbaugh. for more than two years prior to the year 1850, was miserably poor, with a large and helpless family depend- ent upon his daily labor for support, and was, from such cause alone, utterly unable to patent his said invention, or caveat it or manufac— ture and introduce it upon the market.” It then alleges (par. 12, p. 8) “ his utter want of proper mechan- ical tools, materials and appliances to conduct such work.” The answer gives no other excuse. It does not even suggest that he or others failed to see that such an invention was of utility or value. 116 and, his friends swear that the common talk was that if he could accomph'sh 2'5 he would he the richest man in the valley (see the quo- tations on p. 80, supra). “That is this “ poverty”? What effect is sought to be given to it if it existed? Is wealth the ordinary prerequisite to invention, or the ordinary accompaniment of the struggle of an inventor? We shall THE ALLEGATIONS OF POVERTY. 315 presently see that f0' all material requirements this man was favored above most men; but we are now inquiring what it is they allege, and what particular conclusion they wish to draw from thei ‘ alleg: — tion in this behalf. Drawbaugh was a skilful workman, and half a dollar would sup— ply all the materials for a pair of good telephones; indeed, every- thing, except, perhaps, the copper wire, could be pit-keel out of the scrap heap in his machine shop. The utmost that he needed was the ability to devote some of his own time to experimental Work. According to their story he began at least in 1864 to actually con- struct (v. p. 136, supra). lVe do not believe a word of this, but it is a part of the claimant’s story. Twelve years is a long time for improvements after that. But “ poverty” did not prevent his ex- perimental work. The defendants’ witnesses (see the quotations col- lectcd, p. 330, infra) assert that D'awbaugh (lid actually, for at least ten years, devote substantially all his time to work on talking machines. This is shown to be absurdly false; but. the defendants cannot contend that he was unable to do it. The express allegation is that “ long prior” to Mr. Bell’s invention Drawbaugh had " practical working electric speaking telephones” (ans. p. 7), indeed that they contained all the inventions described in Mr. Bell’s two patents, and " other important and valuable inven- tions in electric and magneto telephony, and Were fully capable of’ transmitting, and were actually used for transmitting, articulate vocal sounds and speech between distant points by means of electric eur- 1‘ents ”; that speech was so transmitted through them by many per- sons ”in 1870, 1871, 1872, 1873, 1874. and both subsequently and prior thereto,” and that he finally did perfect all his improvements before Mr. Bell’s patent. The allegation then is that there was no poverty which prevented him from completing the invention and re- ducing it to practice in operative instruments fit for commercial use long before Mr. Bella Pefected speaking telephones for many years in the hands of a professional inventor and patentee, —no one of them ever taken to the Patent Office, no one ever put to practical use, no one ever offered for use, no one ever sought for use by any of the several hundred people who are alleged to have seen them and used them, no infor- 316 BRIEF FOR COMPLAINANTS ON FINAL HEARING. mation of how to transmit speech ever communicated by them or by the maker of them to the community! “ Poverty” was never asked to carry such a load before. This man, so they pretend, spent most of his time for ten years ill experimenting, -— leisure and means for that. He made at some time a pair of finished and fairly good in— struments like I) and E,—leisure and means for that. But when this ten years’ work was finished, he could not find two days of time and one dollar of materials to make another pair, —mere duplicates of what he had, if he then had them, and walk three miles to Harrisburg with them in his pocket, and show or offer them to some of his acquaintances, or some man who might perhaps have a use for such things; and this on the part of a man who asserts that all this time he knew that a fortune was within his reach if he could only make this invention known. This " poverty ” affected every one who came near him. It did not prevent him (so they say) from making perfect telephones for use in his shop, but it prevented him from ofiering one for use out- side. It did not prevent (so they say)/the whole community from knowing that he had a talking machine, nor fifty people (so they say) from talking through it ; but it did prevent people from trying it a sec- ond time, or from Wanting one for any p 'actical use. It. did not pre- vent him (snch is the allegation) from spending ten years in finding out how to talk by electricity, and employing that knowledge to gratify curiosity in his shop, but it did prevent the community (such is the fact) from obtaining from him any information how to do it. It allowed him again and again to spend time in talking through it at his shop to igno— rant, inattentive and uninterested listeners, but it did not permit him to carry a pair three miles to Harrisburg to show to his acquaintance, Mr. Keifer, superintendent of telegraphs of the Pennsylvania Rail- road, or his acquaintance, Mr. Simon Cameron Wilson, superintend- ent of telegraphs for the Northern Central Railroad, or his acquaint— ance, Mr. Theophilus Weaver, solicitor of patents. It compelled him to make an electric clock, and take that to Harrisburg and show to those gentlemen, and to make a magneto key, and take that to Harrisburg and show to them, but it did not permit him to take a speaking telephone which was made already. It did not prevent him from making three large electric clocks, with carved walnut A DISCRIMINATING POVERTY. 317 cases, from four to seven feet high, and offering them for sale, but it did prevent him from making and otfering a pair of telephones three inches in diameter. It (lid not prevent him from printing and circulating a list of his inventions, but it did prevent him from nam- ing the telephone among them. It did not prevent him from making perfect telephones; it only made him behave as if he had not made them. That poverty is too diseriminatinm All this they so put in substance in the answer as well as in the proofs. The effect, and the only effect, alleged for his “ miserable poverty” is that he was, " from such cause alone, utterly unable to patent his said invention, or caveat it, or manufacture and introduce it upon the market” (p. 283, supra). To state the case is to show its falsity. But he did have abundant and unusual resources in money, leisure, material, tools and machinery. ’ He had abundant and unusual resources in the way of neighbors, friends and acquaintances ready to help him, ready to lend, and who did lend him money, and who proved their disposition to advance money on t/zefaz't/L of his untried inventions by raising and so invest- ing $30,000 at different times between the day when he says he made this invention and transmitted speech by it and the day when he first appeared at the Patent Office or before the general public; for he is shown to be a man of singular persuasiveness, in the midst of a 'ather wealthy community, fond of investments in patents. During the same period, and both before and after Mr. Bell’s patent, he spent in experiments on other matters, which never (lid and never promised to bring him a cent, time enough and money enough to have paid for patenting a telephone ten times over, or for making a hundred fit for commercial use. These are not generalities; they are facts proved in the case by the defendants’ record, with the help of a few documents. To that proof in detail we invite the attention of the Court, because we know, as the defendants show that they know, that the facts of non-use and failure to apply for a patent are so inconsistent with the possession of practical instruments through a series of years as to be destruc- tive of this claim. ’ 318 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Alleged utter want of proper tools and appliances. ——Mr. Draw- baugh is a man who, as early as 1852 at least, commenced to take out patents (v. p. 234, supra, for a list). It appears upon his testi— mony that, from that time on, he has been engaged in making Vari- ous inventions, and in constructing machines under them, doing ex )erimental work and 0”eneral mechanical 'obbinm He lived three C J .3 miles from Harrisburg. He is a mechanic of excellent skill as a workman. Bctlsley said ofDrawhaugh (defts, i, 204) :— " Q 31. He is a good mechanic, is he not? “A. Yes, sir, in wood particularly-; he can make anything. “ Q. 32. Do you know why, being a good mechanic, he did not keep himself in funds by working as a mechanic? “ A. He was generally working on patents, and all the money he could raise he took for that, and it left him in very penurious circum— stances.” John 0. Smith testified (defts, i, 358) : —— "X Q. 94. Why was Dan always hard up? Did he drink, or was he lazy, or what was the matter? "A. He spent the most of his time experimenting; that is the reason why, I thought, he was hard up; he was always sober and industrious. “ X Q. 95. Is he a good workman? "A. First class. “ X Q. 96. Was he a man who could have got good employment and good pay around here if he had a mind to? "A. He told me they sent for him to come to Philadelphia dif- ferent times; that they Would give him five dollars a day.” But from spending all his time experimenting to spending it all experimenting on telephones only is a long journey. We have already stated and shown (p. 243, supra) that he sold his rotary faucet and pump patents for a large sum in 1866—7; that the purchasers fitted up a shop at an expense of about $20,000; that other concerns have occupied the shop either to manufacture his inventions or work under his directions, and that from then until the present time he has had a private room and a private workshop in the same building, with the free use of all this machinery and water power. J. B. Drawbaugh testified ('56. i, 616, ans. 122) :— AMPLE MACHINERY AND TOOLS. 319 _ " That [Pump] Company established a machine shop at Eberly’s Mills, which, some of the company told me, cost them from $20,000 to $25,000.” IV. L. Gorgas, bookkeeper, superintendent and member, testified (27). i, 685) that the company carried on "a general manufacturing” and machine—shop jobbing business. Drawbaugh himself testified of it (1?). ii, 781) :— " Q. 12. Ever since you moved your shop to the building occu- pied by the company, have you continued to use the latter building as a work~hop? "A. Yes, sir; I have had access to it ever since; part of that time I have been overseer tlfere for different companies; I kept my tools there. and have had my shop there ever since.” "A. 506. I did not work continuously for them [the Pump Coin— pany], but I don’t remember exactly, and could not state—but there was times that I worked on other improvements, and there was times, when the company stopped work, that they gave me permission to do work for myself in the shop while the company was not operating.” "X Q. 760. What machinery was there on the first floor, and what work was done there by the Pump or Drawbaugh Manufactur- ing Company? "A. I will try and give that to you to the best of my recollec- tion: there were five engine lathcs, I think; two small or hand lathes; a machine for drilling faucets, as it was called; a drill press ; a grindstone; there may have been some other small machinery that I can’t- think of now. ”X Q. 761. This shop had a water wheel for driving the machin- ery, did it not? " A. Yes, sir. “X Q. 762. Will you state what machinery there was on the second floor, and for what the several rooms were used while the Drawbaugh Manufacturing Iompany occupied the building? "A. I will state as near as I can remember: there was a wood- turning lathe, that was in the wood-working room; there was a machine for making strainers for faucets; that was in a room in the Southerly part of the shop gnot in either of the small rooms; there was a small grindstoue, also, I think, in the same large open part of that story where the strainer machine was; there was a small ma- chine for cutting out the bottoms of strainers; that is all that I can remember of.” "If Q. 807. You mentioned that the company gave you the privi— lege of staying there and doing work for yourself: did that privilege extend to the use of the company’s machinery, tools and power, and 3'20 BRIEF FOR COMPLAINANTS ON FINAL HEARING. did it extend during the whole time that the company occupied the shop, when you were not in the employment of the company ? ”A. Yes, sir, that was, though. for an equivalent; they had been using some of my tools, and I think it was considered that that was an equivalent.” ”X Q. 1113. \Vliile the Haucks occupied the shop, did you have the use of the shop and tools in the same manner as you had had while the Faucet Company was there? "A. Yes, sir; they gave me that privilege. I had a small room in the upper part of the shop that I occupied during the time they were there. The machinery, generally, was on the lower floor, and I did not use it unless they were not there, or were not using it. There vas a pretty large portion of the time they occupied the shop that they were not running. There was months, sometimes, that they wouldn’t come to the shop. "X Q. 1114. When did they move their machinery :u'ay? “A I think it was in the latter part of 1876; I think so; about that time; I can’t remember; it may have been after; it may have been in the spring of 1877 ; I won’t be positive. "X Q. 1115. What machinery did the Axle Company put into the shop? "A. I will have to study that a little; there were a good many different machines; they purchased and put in two engine lathes, a drill press; they used a hand lathe that had belonged to Eberly, and that I had used there, and an emery wheel and machine for grinding axle bearings for boxes, a machine for polishing the inside of axle boxes; that is all that I can now remember. "(Y Q. 1116. Did you have the privilege of using the machinery of the Axle Company while it occupied the shop? “A. Yes, sir; at times when they were not using, I used their machinery often at night.” "X Q. 1120. Did the Grissingers put any machinery in there when they moved in [1878] ? "A. Yes, sir; two small lathes, a grindstone, or rather two grindstones,—- one a surface grinder, and the other an ordinary grind- stone,— some polishing wheels, some tiles; there were a few other small tools that I can’t remember now.” His relations to the Pump Company were such that he expressly testifies (ans. 506, supra) he had full liberty to work on " other im~ provements.” He did do so on sundry things, and they knew of it; he had, therefore, no reason to conceal a telephone from them, if he had one. He did not work for the Haucks; they sought to employ him by the day or by job work, but he preferred to work for him— self, stating that he had Work to do he had promised other parties. AMPLE MACHINERY AND TOOLS. 321 He a‘so did experimental work during that time with David A. Hauck’s knowledge, but not on telephones (complts, i, 791, ans. 34; 792, ans. 43—4). On Drawbaugh’s crossvexamination we introduced deposition made by him in 1875, and thereupon the following (defts, ii, 1024) : — “ Counsel for defendants inquires for what purpose this last—men- tioned exhibit is offered in evidence on cross-exainination. " Counsel for the complainant replies that he introduces it to show, among other things, the witness’s occupation as a model maker. " Defendants’ counsel says that that has been abundantly proved and never denied.” This " miserably poor ” man, " utterly destitute of proper tools and appliances,” nevertheless was in such a condition that in and before 1876 he had advertising billheads as follows (v. p. 200, supra) : — “ Bought of Daniel Drawbangh, practical machinist. Small ma- chinery, Patent Ofiice models, electric machines, etc., a specialty.” Pressed on cross-examination, Drawbaugh tried to creep out of the trouble by the suggestion that his trouble was only want of ma- terials, and that when he worked for others they furnished money for materials in advance. Instantly asked to name an instance where this had been done, he confessed that he could not (defts, ii, 999). Non mi ricordo is the usual refuge of this person. The materials for a telephone such as he made would not cost fifty cents. But a more conclusive answer to the whole is found in the things he did make, and for which he did find money, leisure, tools and materials. There are among other things Three galvanometers between 1867 and 1877 (Drawbaugh, defts, ii, pp. 974—5, ans. 1007—1016). An alphabet or dial telegraph with letters, worked by magneto currents. It is proved by many witnesses to have been seen in his shop between 1868 and 1875. Drawbaugh, with his usual vagueness, says ofit (defts, ii, 988, ans. 1065),"1 don’t remember when [I made it], and the length of time I was experimenting on it‘I don’t remember.” He describes it (lb. pp. 986—8), and his description shows a perfect command of language. It was made in 1874. 322 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. A71 autograph telegraph, partially constructed and never finished. Drawbaugh only remembers that it was between 1868 and 1875 (defts, ii, 989, ans. 1070—1). It was 1873—5. A magneto key, to be used without a battery, and generatemag- neto currents by the motion given to it by the operator’s wrist. This was to be used as part of an alarm call, to ring bells, and he tried to arrange it to ring at pleasure either one ofseveral bells. It was also intended to be used for sho1t- line teleg1".113hi11g,and he made fo1 it fi1st an or'dinaiy Mo1se sounder and 11fte1 u ards a polarized re— lay 0r sounder. The first magneto key he made requiled a heavy magnet to be moved. D. A. Hauck testifies about it (complts, i, 794; not contradicted) : — "A150. Some time after he had it completed—he had been t1ying it in the shop 101 (lifelent purposes — he expressed :1 desiIe to fly it 011 a long line of “he. Feeling interested, by his request for pelmission, I applied to Ge010e A. Zachalias, who was the agent of the Cumberland Valley Railroad at Meehanicsburg, asking him to give Mr. D1 awbaugh an opportunity of testing his inst1u- 111e11t.He said he would, and, some time aflei , Mr. Drawbaugh and I went to the telegiaph ofliee, and Mr. Zachaiias connected the instlument to his 1el:1y or sounder, I dont remember which, and endeavored to mite with it, as he said, but said it was too cumber— some and unwieldy; he could not do inuch w1th it. I went away after about ten minutes, leaving Mr. Diawbaugh there.” He then made another, in which the heavy magnet was stationary, and the\4 old movable 01' plunging core of Dr. Charles G. Page was used; '..D A. Hauck says (1). 794): "A. 53. I think I saw one at the shop afterwards differing from the fi1st one in l111vinome- thing to the talking machines or with the talking machines (ans. 41). I was in his shop at night, maybe once or twice a month. I am not So often out at night; generally at home. When I was there at night I would find Mr. Drawbangh giving his attention “ more on the telephone, or speaking machine, I should say, than at any other thing.” I have stayed with him when he was working on the speak- ing machine as late as ten o’clock at night. " He said that he could work better at night; that his mind was not confused so much with other things as through the day” (ans. 42—47). "Dan was down at the shop, and his wife fell in need of money and asked me whether I could not give it to her; that Dan was down to the shop all the time spending his time in these inventions, and she must have some money, she said, to keep the family Going” (ans. 74). I saw him frieque 1tly at the shop at night \VUl‘klllgo on the talking machine. “ Then I saw him again that he did not Wo1k at it, and told me that when he was by himself at night that he had a better chance to study about these things, and that he very seldom goes to sleep het'me mid- night; then sleeps in the morning to make up for the foiepart of the night, I then told him that that would not suit me, that I would like to 6sleep 111 the fotepart of the night and get up in the 1110111111g; he said it was not so with him, that Dhe does:3 his studying before mid- night and then sleeps in the attei part.” “ It n as nothing said 111 gen- eral or talking machines. He just said ‘inventions.’ There was no reference exactly to either one” (x-ans. 117, 118). No. 49. Ephraim 11’. Holsz'nger, defts. i, 381. ——-During the time that I lived at Ebeily’s Mills (September, 1873, to November, 1876) Drawbaugh was expeiimenting piineipally on the talking machine. ‘He appealed to be crazy on it. I often tried to get intoimation from him on other subjects, and about a half a minute’s talk would turn him right on the talking machine; that is about his standing— the way he felt all the time I was there.” “ Shortly after I came tin-1e I made mention of a certain machine which was con- sidered by people who think themselves sharp, an 1111110-sibility. He said tome that my mind run very much in the same direction that his did, and that I was the only person he came across to whom he felt flee to express some of his private ideas” (ans. 4.”), 46). “I heard his wife say that Dan was at that old shop fool- ing his time away, while they, the family, hardly knew how to get anything to eat; she also told me in my oflice that she smashed up a ABSORPTION IN WORK. — TELEPHONE ? 335 lot of photographing and other things about the house in order to stop Dan from fooling with them.” Just how often I heard her make remarks of that kind I could not say; perhaps a dozen of times or more; it was pretty often (ans. 51, 52). While I lived at Eberly’s Mills Drawbaugh " did work steadily, intently, ——never lost one moment; but, influenced by seine super— natural or other power, did not happen to work at such things as did, or would, bring him in the required necessaries for the suste- nance of himself and family.” “ He put a great deal of his time in experimenting on his talking machine; in fact, so near all his time that he got very little earned.” “I do not remember of anything that he was working on except a magneto-electric machine, but; whether he worked on that as an invention while I was there, or only completing a former invention, I do not know; that is about the sub- stance of what I know about his inventions” (X-ans. 108—110). No. 55. Henry F. Drawbaugh, defts, i, 415.—IVhile I was at my brother’s shop in July or August, 1872, and we were making that cylinder and hoist rigging, he was working at the talking machines and experimenting. He was turning up some walnut machinery for his machine, and I could not keep him at my work (ans. 9—12). Every time I was down, from July or August, 1872. up to May, 1876, Dan was working at the talking machine more or less, experi— menting (ans. 30). ' “Then I would go to Eberly’s Mills on the days or nights when the train would be detained at Bridgeport (May, 1876, to summer, 1878), Dan, as a general thing, was working or experimenting on the talking machine, the clock and the motor, all three of them; he always explained them to me, and showed me the improvements he was making (ans. 35). While the Electric Clock Company were operating there, I don’t know whether I can tell you how often I saw Dan doing something with the talking machines. “ Nearly every time I was down he would be working at them, generally at night, when no one was there but myself; he would be showing them to me and explaining them to me; when he would be working at them in the daytime and any- body would Come in, he would shove them away quick, so they could not see what he was doing.” Every time I was down there, from the summer of 1872 down to the year 1879 or 1880, he was working at; it and talking, and wanted me to go in with him and furnish means (ans. 40, 41). No. 57. William H. Bales, defts, i, 438. —InDrawbaugh’s shop eight or ten times between the summer of1874 and the fall of 1877 (ans. 5). "It would be hard to tell What he talked about every time I was there; his general conversation was about talking machines; several times that I was there his mind seemed to be taken up with it; he 336 BRIEF FOR COMPLAINANTS ON FINAL HEARING. said he would like to get it patented, but had not the means to do it; he said he could make a fortune out of it.” He told me this a number of times. “ We were very intimate friends, and I went to see him pretty often, and we exchanged opinions about mechanism” (x—ans. 23, 24). " He was talking about getting the talking machine patented ; all that kept him trom it was that he had not the means of getting it patented. That \\ as his general conversation on all the interviews that we had about it” (x—ans. 42). No. 59. Wz'llz'mn S. Dellinger, defts, i, 462. —During the time that the Clock Company was in operation at the 'shop I saw Mr. Drawbaugh doing something with his talking machines. He was working on them after night. I was there pretty often until nine or ten o’clock; I have seen him go home at eleven and twelve o’clock at night; I have seen his light in the shop as late as twelve o’clock; I woke up generally about midnight, as I had occasion to (ans. 33—37). During the years 1876, 1877, 1878 and 1879, as I would be in Drawbaugh’s shop from time to time, he would generally be experi- menting on the clocks and telephones. " The most was on the tele- phone. His whole heart and desire was on the telephone” (ans. 44, 45.) [Remember that Mr. Bell’s telephones were then in exten- sive connnercz’al use; all that Drawbaugh could have been interested in then was 1'n'zj;rovenze7zts.] I thought his whole heart and desire was on the telephone because he always talked to me about it, and experimented on it. I seen him work on them (x-ans. 133—135). "I don’t remember any particular thing that he said about the telephone, no more than that he was always talking to me about it, and had worked on it after night, and it was always about telephones to me. He may have told me why he kept at work on it and exper- imenting on it, but I have no recollection of it ” (X-aus. 147, 148). “ I seen him work on wood work and on these curled magnets (taking up ’D ’) ; also on these wires. He had a machine that he was working on that was putting thread or something on the wires; I don’t know what it was ” (x-ans. 136). " I seen him work on these kind of screws and brass pieces, pol— ishing ofl’ the brass bracket with a little machine that had a leather pulley on it (X—ans. 152, 153). I didn’t see all the work on the telephones that he did in those years, and I do not remember everthiug that I did see him do on telephones in those years (ans. 184—186). No. 68. George Free, defts, i, 508. — While the Electric Clock Company was carrying on buts of suit. Same day do- t'endant claims freehold stay of execution. Affirmed by me; says he owns a property in Mechanicshurg \vorth $2,000, and only $300 judgment against it. Justified on oath, and exeepted [accepted] by plaintifl'.” HIS FALSE STATEMENTS ABOUT MONEY. 347 Some of the statements in Drawbaugh’s deposition about his use of his money are shown to be wrong to an extent sufficient to allow means for taking a patent, and sufficient to show that his deposition is not to be relied on about money matters. The [um/167' for his house has been spoken of, p. 343, supra. Supposilz'tz'ous old debts.—— He was asked on direct examination whether, at the time of the sale of the faucet patents (1867), he owed old debts, and whether he paid them out of the proceeds of the faucet, and he answered (defts, ii, 876, ans. 488) :— "A. Yes, sir; I did use money out of them payments; the amount I am not prepared to say, but to the amount of $1,000 or more I am positive.” Of course this is so vague as to be worthless; but we did not let it rest there. His cross-examination has the following (defts, ii, 1117) 2—— " X Q. 1749. In your answer to the 488th interrogatory, on page 876, you speak of using a portion of the money you had from Hertz- Ier and others in payment of old debts, to the amount of $1,000 or more : to whom did you make these payments? " A. I don’t remember to whom; I generally had a great many debts of different kinds—store bills and hills for flour, coal and wood, fuel — I could not just enumerate, and I could not enumerate the parties I paid it to. "X Q. 1750. Can’t you name any of the parties to whom you made those payments? “ A. I might name some, but I made payments more than once; if I have to go by the time when I got the money, - I can’t recol- lect who had the warehouse where I got my ’coal — Graybill & 'laeh- arias; I know I paid them for coal; there was a party went by the name of Natcher, who run the mill ; I know I paid him about that time; as near as I can recollect there were store bills of parties that had stores; I paid them some money. ” X Q 1751. You mean stores at Ebcrly’s Mills? “ A. Yes, sir; I cannot enumerate the different bills I made.” The pretence of$1,000 debts for nothing but store bills, so far as he remembers, is absurd. But a man who can get $1,000 credit, could borron $15 for a caveat. In fact the whole testimony is simply false. Nate/167' did not run the mill nor go to Milltown until 1870. Drawbaugb’s whole ‘bill with him only amounted to $13.29, and of 348 BRIEF FOR COMPLAINANTS ON FINAL HEARING. this only $5.27 was paid in cash (Natcher, complts, i, p. 503). The firm of Zacharias dé Greg/bill was not formed until 1869 (see the partnership articles in complts, ii, 1262, and iii, exhibits, 377, and deposition of Graybill, defts, surrbtl, p. 185). The defend- ants put Graybill on the stand, but did not ask about dealings with Drawhaugh. The storekeeper at Eberly’s Mills before 1867 was Crull, who furnished means for the faucet, and whose bill Draw- bangh settled by work on the faucet before the Gorgas Company was formed (v. p. 245, supra). The defendants tried to help this in their direct proof by J. K. Taylor (defts, i, 662), who testifies, purely from memory, that about the middle of September, 1867, Drawbangh paid him some money. " Q. 4. How much did he pay you? “A. I can’t tell exactly, but it was between $200 and $300, if my memory serves me right.” The defendants tried, but in vain, to get Drawbaugh to confirm this, and asked him, on redirect examination (defts, ii, 1118) :— " Q 1759. Mr. John K. Taylor, on printed page 662 of defend— ants’ record,ltostifies that you paid him between two and three hull- dred dollars, balance of an old debt that you owed him for some years, and that you made the payment in September, 1867: do you remember whether that was out of the money that you received from the Faucet Company? "A. I don’t remember; it may have been ; I can’t remember the different payments.” Geo. Miller’s deal/L anzl the apple speculation.—Drawbaugh sought to account for a part of the money received from the sale of his faucet patent as follows (defts, ii, 871) :— " Q. 460. Out of that money which you received from Mr. Hertz- ler at that lime, was any portion of it lost; if so, how? “ A. Yes, sir; there was a portion. There was a gentleman liv- ing at my place there, at Eberly’s Mitls,—— spoke to me about purchasing some apples at \Viiliamsport; said there was a large speculation in apples. He said it'l \vould furnish him $400116 would give me a large percentage. He said he would give me the half of the profits, which he had figured up to a large amount. I got that amount, $400, from Mr. Hertzler, and gave it to Mr. George Miller, the man referred to. He went to Williamsport, and arrived there in the night. When getting oflf' the train he was caught in some way by the train, or it was snpp0sed so, and was killed. He was found HIS FALSE STATEMENTS ABOUT MONEY. 349 in the morning dead. The money was found on his body; he had a memorandum of $400 from me. The expenses occurring there—- coroner and jury expenses,——\Vere paid out of that money; the coffin was also paid out of it. I paid a man by the day for going up for the body, and also paid all his expenses. I never kept any ac- count of the money paid out, but, to the best of my recollection, it was $100 or more; the balance I got back, but I don’t remember the amount.” He had a telephone then that would talk. He wanted money to buy a few materials and to file a caveat or take ,a patent. He could not raise it. He says so, and the Court must believe him. Apparently he preferred apples to telephones. But the alleged loss is pure imagination. Miller was killed Oct. 14, 1867. Upon his person was found $394.40 ($400 less his rail- road fare, etc). The verdict of the coroner’s jury states that this money was in the hands of R. C. Swan, a policeman, and foreman of the-jury. The county paid the expenses of the inquest, as it is bound to do. (Dep. of Whitehead, clerk to county commissioners, and papers produced, complts. i, 352.) The railroad company paid all the undertaker’s expenses at Viril- liamsport (deps. of Page, undertaker, and his books, and of Brod— erick, auditor N. C. R. R., and his vouchers, 6!). 355—7). WV. Darr, brothepin-law of Miller, went to “Tilliamsport with an order for the body and authority from Drawbaugh for the money. He got both, and he and Swan together brought them to Bridgeport (Harrisburg), where a neighbor met them with a conveyance to Eberly’s Mills. ' He gave all the money to Drawhaugh, and Drawbaugh never con]- plained that any Was missing. Drawhaugh’s only outlay was $3.50, half of Darr's expenses (Darr, complts, i, 358). Swan confirms this so far as he is Concerned (complls, ii, 1020). Drawbaugh has not ventured to go back on the stand to contradict this. In the sur- rebuttal a contemptible attack was made on Darr’s memory, but not one word was said against his honesty 0r truthfulness. The defendants have called Henry Miller, son of said George Miller (defts, surrbtl, 441), identified by George Ditlow (eomplts, iii, 2124, ans. 17). He testified that his mother now lives in Mill— town (27). 444, ans. 33) ; yet he is not asked about the money; and his moth r, who must know of it (if Drawbaugh’s story be true), is 350 BRIEF FOR COMPLAINANTS ON FINAL HEARING. not called. If Drawhaugh had understood or believed at the time that his money had been lost,as stated, it would have been common talk in the village, and that fact would have been proved. Neither he nor any one else could have believed it then or now, for the duty of the county and the usage of railroad companies in such cases are too well known. The story grew in Drawbaugh’s imagination from $3.50 to $100. (See appendix, p. 488.) His credit enabled him to borrow for other purposes; David Dil- low. —Drawbaugh owned one sixth of the stock of the Faucet Com- pany, —original value based on the actual cost of the patent $1,000, ——and afterwards paid assessments, in cash $1,210, and in labor about $1,000 (Drawbaugh, defts, ii, 878; W. L. Gorgas, ib. i, 678—9). This gave him actual property, which meant a borrowing power, in addition to the value of his house. He did have such borrowing power and credit, for he testifies that, at a time which he does not exactly fix, but which the defendants assume to be 1868, he borrowed $500 from David Ditlow (Drawbaugh, defts, ii, p. 879, ans. 498; p. 881, ans. 509—520). A part of this was used to pay instalments, but not all (ib. 881, ans. 512). Mr. Ditlow is living, because Drawbaugh went to see him while testifying (ib. 879, ans. 498). The defendants ought to have invited him to tell the Court whether Drawbaugh was too poor and in too bad credit to raise $60 for a telephone patent; 01' to tell the Court whether Drawbaugh ever asked his aid; or to tell the Court whether he ever saw or heard any such thing as a telephone before 1876,——but they did not. It ap- pears that this capitalist lived one fourth of a mile from Drawbaugh’s shop for twenty years up to April 1, 1875. He receives money, but applies it to paying a little mortgage on his house. —In July, 1873, the aflairs of the Drawbaugh Manufactur- ing Company wvre wound 11p, and Drawbaugh actually received $425 in cash as his share of the proceeds. He might have paid for a patent out of this. The defendants tried to make him account for this money by trying to have him swear that he paid out of it a bot- tom incumbrance of $300, which had been standing on his house for more than six years (Drawbaugh, defts, ii, 884, ans. 526—532). The best he can say is that he paid some of it out of this Hauck money; but his memory is worthless about dates and amounts, and they do v...sau»u..;;.~m;msw‘ m: . . .,« L ’ J...w. HIS FALSE STATEMENTS ABOUT MONEY. 351 not call the creditor nor produce the records. But certainly the in- ventor of the telephone, who believed that his fortune was assured if he could get a patent, would have saved $60 out of this $425, and would have got this creditor to wait, or some lender to purchase a mortgage debt for only $300, the first incumbrance on real estate worth over $2,000. Such a debt does not bring the pressure of ne- cessity. His faucet stock was originally of a cash value of $3,000. It was always worth a substantial sum. When it was wound up, in July, 1873, the division in money to each shareholder was ($650 + $51) $700. Of course he could have borrowed $75 on this or on his house, at least he could have tried to. He never tried to, and when he got the money he applied it as stated. Leonard-[Kissinger Note. —He next presents a cancelled note, signed by G. W. Kissinger and himself, in favor of Geo. Leonard, dated April 26, 1873, due May 26, 1873, for $60. He thinks it was for flour and feed from Leonard’s mill, and thinks " it was paid out of the Ilauck money” (Drawbaugh, (lofts, ii, 887, ans. 543—6). He afterwards produced another note, signed by himself alone, in favor of Leonard, for $103, on demand, dated Dec. 31, 1875, and swore (27;. 894, ans. 585) :— "A. That note was for a matter of goods that I got out of the mill, ——flour, feed, etc.” And by this he attempted to account for $103 more. Mr. Leonard had previously been called by the defendants to tes- tify that Drawbaugh was slow pay, etc. The defendants did not ask him about these notes, and, of course, we had then no knowledge of their existence, and did not (Leonard, defts, i, 725). Afterwards we called Kissinger and Leonard, and it appeared that Drawbaugh owed Kissinger, who was the storekeeper; that he gave him his note for $60, about the amount of his bill; that Kissinger (proved to be financially worthless) also signed it; t/zat Leonard discounted it, looking to Drawbaug/L alone for the money; that Leonard let it stand, lent Drawbaugh more money, gave him credit at the mill, gave up the old note by taking a new for the Whole, and that Draw- baugh’s sole note for $103 included all these debts (Kissinger, complts, i, 557; Leonard, complts, ii, 1201). r 352 BRIEF FOR COMPLAINANTS ON FINAL HEARING. If the defendants’ attempt to account for Drawbaugh’s money is anything more than a farce, here again is error enough to furnish money for a patent. In fact it shows that Drawbaugh is worthless as a witness, and that in 18755 and afterwards he had such credit that Leonard, the capitalist of the village, owner of the mill and halfa dozen houses, was ready to leml him money. Leonard was called as a Witness by the defendants. He cannot remember that Draw— bangh ever spoke to him abouttelephone, or that he ever heard of it before 1877; yet he and Drawbaugh Went to the Centennial together (Drawbangh, defts, ii, 858, ans. 386-390). All this is spread out in our appendix, pp. 237—243, 492—4. Drawbaugh next alleges a payment to Dellinger, the miller, of about $100, in April, 1878 (defts, ii, 895). Dellinger was called by the defence (defts, i, 475), and he testified that Drawbangh was always trusted by them, though slow pay. He does not allege any such pay- ment. Jacob Evans, Dellinger’s miller, testified that Drawbaugh’s family were as well dressed as any one in the village; that they never refused to trust Drawbaugh at the mill, and that the firm at one time would not sell to George Drawbaugh until Daniel agreed to be responsible for him. Furniture [NOT] sold for food. —Then Drawbaugh introduced what was intended to be a pathetic little incident about selling his household furniture for food for his family. The defendants caused Jacob H. Reneker to testify as folloWs (defts, i, 247) :— "Q. 37. At the time you made that loan to him [$20 lent in May, 1877] was there any other transactionbetween you and him? “A. There was; he wanted to trade me a bureau and secretary combined, on provisions, such as meat, potatoes, butter, eggs and lard, for his family, and we traded in that way. "Q. 38. Did he, or dld he not, at that time, say anything about being in want of provisions for his family? "A. He did say that he needed provisions very bad for his family.” Drawbaugh testified on direct examination (defts, ii, 900) :— “Q. 623. Mr. Jacob H. Reneker has testified (p. 247 ofdefend- ants’ printed record) that in May, 1877,‘you wanted to trade him, and did trade him, a bureau and sec-rotary combined, for provisions for your family : do you remember that transaction? "A. Yes, sir; I do. HIS FALSE STATEMENTS ABOUT MONEY. 353 "Q. 624. Why did you trade off your bureau and secretary at that time? "A. I needed provisions for my family. "Q 625. Hld you no means to wet such provisions, except by trading away your household hunituie. 9 ”A No, sir; not at that time—I can’t—I had no other means.” Touching, —but a falsehood. The facts are that when he moved back from Meehmicsburg to Eberly’s Mills, in the sp1ing of 1877, he found he had more furniture than he wanted. It took sixteen horses to haul merely his household goods. Among other superfluities, he had two sec- retaries, one which he had made himself, and one which he had bought; he sent one to his house, and the other, with some un- needed |.)edsteads, etc., was sent to the shop and sold to Reneker, who, according to country custom, paid for it in barter. Orlando Kahney (complts, ii, 992) testifies (ans. 25) that there were four teams, with either sixteen or eighteen horses to haul the furniture; that he helped. “.Q 33. Did you know anything about a sale of a semetary by Mr. Drawhaugh to Mr. Reneket in the spring of 1877, at the time when you and0 others moved Mr. Drawbaugh down from Mechanics- burg to Mill1own , and did you hear Mr. D1awbangh and Mr. Ren- eker negotiating about it? “A. Yes, sir. “ Q. 34. Did Mr. Drawbaugh have two secretaries at that time among his furniture, or did he only have one 2? “ A. He had tWo, he said, and didn’t need but one. ..35 This secretary that he sold to Reneker, was it one that he had bought at a stoie, or one that he had made himself? “A. I think he said he had made that one himselt. ” Drawbaugh did not and could not contradict this, for on cross- examination he had testified (defts, ii, 1064) :—- "X Q. 1473. “Then you moved back to Eheriy’ s Mills, did you take all your furnitule into the lnuse which you moved into, or did you stoic some of it elsewhere? " A. I took some of it to the shop, —— a pair of hedsteads and a secretary in bineau form, which I sold to Mr. Reneker; I took vegetablcs— potatoes and other things of that kind —in payment for it.” 354 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Moreover, at the same time Drawbauqh’s credit was so good with Reneker that he could borrow $20 (more than the fees for a caveat) of him for the mere asking. Reneker says (dcfts, i, 246) :— “A. 33. He came to the field where l was working, told me he was ver hard n ). and wanted me to loan him about $20 for two 5 weeks, and I gave it to him.” , About the same time he paid off M00 on a mortgage on his ' Mechanicsburg h0u~c (llznwixairgh, (lofts, ii, 891; ans. 567). Dur- ing the same period, May, .l-zr'c and July, 1877, he was makingr two or three expensive electric clocks, — four to six feet high, — out of his own resources (v. p. 324, supra). When this man tried-t0 make the Court believe that his destitu— tion and want of credit were such at that time that he was forced to sell his furniture to buy food, he lied to the Court,— he lied deliber- ately, — to support an issue known to be vital. That is What this man is. The story to support which this is told is like it,——a few specific facts, which may or may not he true, dressed up, colored, twisted so that what they represent and what they are presented for are a lie. II. Bugler’s testimony (defts, i, 157) is of the same character. Drawbaugh did repairs on his sawmill, and also bought lumber of him. He swears in substance, that Drawbaugh was so poor that he Collected up Very close, calling for cash when any was due for re- pairs, even when he owed for lumber, and being so pOol' that at night sometimes he did not know where breakfast for his family was to come from. “The facts proved by the accounts and by Drawbaugh’s cross-examination are that there was $30 to $60 due to Drawbaugh all the time; that no cash was ever paid him; that a balance was due him until 1877. This settles the question of “ abject poverty.” All these facts must have been known to Drawbaugh when he sought out Bag/[er and bad lzim put on t/zestamt; because. litigation having arisen between Drawbangh and Bayler, Drawbaugh told the story in an affidavit, sworn to only fourteen moat/ts before Bag/lei“ testified, and the suit resulted in a judgment in favor of Drawbangh, rendered upon a default of Bayler (Drawbaugh, defts, ii, pp. 1017, 1023; judgment record, defts, exhibits, p. 72; app. p. 47). This matter of Bayler is peculiarly iniquitous. One of the most .. . .mag-as.,y;<.aWam(M¢ma-mwrrli HIS FALSE STATEMENTS ABOUT MONEY. 355 material parts of Bayler’s story was that he went to Drawhaugh’s shop on invitation, was shown the talking machine, solicited to put money into it, seriously thought of it, considered that it might re— quire at the outside $300, but concluded not to on account of his other business. Drawhaugh, if Baylor is to be believed, was in the state of abject poverty described, but terribly anxious to get money to patent the telephone. Every time they met Drawhaugh renewed the request. That is the story which Drawbaugh got Bayler to swear to. On that day and at all times during the next four years, Bavler owed Drawhaugh enough to pay the patent fees, and Drawhangh never asked him. Within the month alleged for this visit A. Fisher paid Drawbaugh $63 for a hydraulic ram and pipe (p. 370, infra). lVithin a month Drawhaugh received from the “Drawhaugh Manu— facturing Company” $425 (defts, i, 684; p. 348, 340. supra). He used it to pay off the last mortgage of $300 on his house, and applied the rest to his general uses. These facts are all proved by the defen- dants’ written evidenee. The story of abject poverty is a falsehood ; the story of desire to patent a telephone is a falsehood ; when Draw- haugh got Baylerto testify he knew that Bayler was swearingr to a lie. The defendants, in their proofs in chief, caused many witnesses to swear in general terms that Drawbaugh was poor, and bad pay, and generally short of money. But these were glittering generalities. That he spent his money is true; that he did not pay any unsecured debts which he could postpone is true; that a number of executions issued against him is true; but there are certain positive facts which outweigh all this. His property was never levied on. \Vhen the constable made him understand that he must pay, he did. His chil- dren were well dressed and his house well furnished. There is no pretence that he was ever refused credit but twice during the whole thirteen years under inquiry. Leonard discounted his note and then lent him more money. Reneker lent him $20 only for the asking. His friend and witness, Shettel, says (0. p. 357, infra) that he would have lent him $50 at any time, but he never asked for it. He did not drive. those who owed him. His tenant Fettrow always owed until the end of the year. Lee & Bayler owed him balances of $30 to $60 for many years, and he did not ask for it. Yet the case of his as- signees depends upon making the Court believe that he spent ten 356 BRIEF FOR COMPLAINANTS ON FINAL HEARING. years vainly searching for $60, the possession of which he knew would secure him a fortune. Feltrow’s Rent. ——They called in chief Daniel Fettrow, who lived in one of the tenements of Drawbaugh’s double house from 1868 to 1876, and whose rent the first year was $80, and afterwards $110, a year. Daniel Fettrow testified that Drawhaugh always wanted to collect his rent in advance, in the way of little payments and advances during the year; that they balanced their accounts every year, ex- cept the first, and that Drawbaugh was so anxious for money that it sometimes happened that he had overpaid him when the end of the year came. And they asked Fettrow to put in the account, showing everything he did pay him, which he did do. The story turns out to be entirely false. There were from $20 to $70 due Drawbaugh at the end of every year on each settlement. That means a good deal. If he had been as poor as it is pretended, he would have done as they say, —— got money from Fettrow faster than it was earned ; but he never did. This responsible tenant, a friend of his, living in the same house, never was dunned to pay up the money (defts, i, 36!); iv, exhibits, G; app. 100). Again, it was represented that these advances of Fettrow, from time to time, —e:tlled advances, but really payments on account of rent earned,——were for absolute necessaries of life. This is not true. Meat of the charges were for metal or iron work; a good tnany for blacksmith work on jobs that Drawbaugh was doing for customers. (See account, defts, exhibits, p. 6.) The case must be pretty badly OH, or the preparation based on the most reckless statements made by Drawhangh to his counsel, when it is found full of such petty falsities as these. E. R. Holsinyer, the printer, was a friend of Drawbaugh’s. In the summer of 1874, he wanted to buy some new type, and Draw— baugh agreed to lend him five or ten dollars, and did lend him five, to be paid for in future printing (complts, ii, 1210). Afterwards, Drawbaugh appears to have lent him ten dollars more by advancing him his own note, or rather accepting a draft or order for the amount, which Leonard readily accepted as cash (see Leonard’s deposition, complts, ii, p. 1203). What folly for Drawbaugh to pretend that HIS FALSE STATEMENTS ABOUT MONEY. 357 during this very year he could not find $15 himself, or get credit enough to raise $15 to pay the fees on a caveat. An enteitaining recognition of his ability to spend his time in work and support himself by his credit while waiting for results, risking his pay on ultimate results, is found in the deposition of his witness, Shettel (defts, i, 293—4, x—ans. 153—157) : ~— “XQ. 153. You have testified about his extreme poverty in 1878: don’t you think you have rather overstated his poverty? "A. No, sir; not ifI dare believe his own words. “X Q. 154. You have testified that he was a friend of yours, and was so very poor in 1878, and that you let him work for your com— pany that year and paid him no wages: don’t you think you have rather overstated the friendship, if he really was as poor as you say? ”A. I don’t know that I have; I think he is just as good a friend of mine to-day as he was in 1878 and before; and we, as all others in business having a contract, as we thought, think it right to live to that contract; and he not alone in 1878 was poor, but before that: was just as poor as in 1878. “XQ. 155. You made a bargain with him to Work for your company, maybe fora year, and he was not to receive anything for wages, unless profits came at the end: do you think it was the act of an old friend to make such a bargain and expect him to live under it, if he was as poor as you say he was? “A. Yes, sir; when I make a bargain or c mtract I always ex- pect to live up to it, and I think it is perfectly right that everybody else should. “X (2.156. If he was as poor as you say, how did you suppose he was going to live at all and snppmt his family under such a con— tract? “A. Jnst as he did before he made that contract, by Working many days for nothing, and depending upon his creditn‘s to give him as they had been giving him before; but if he had asked me for the loan of $25 or $50, I should have done it; but he never asked me for the loan of any money, with the exception of several dollars that I gave him at times here in Harrisburg, when we were over.” Short of? for ready money, very likely; but this old acquaintance knew that he was perfectly able to spend many months in labor not gainful at the time but promising profits at the end, and he made a contract with him based on that knowledge. This is not opinion, nor memory; it is contemporaneous conduct. But about the clock; not about a telephone. He Izad work and money during the time of the Haucks.—Ill 358 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. 1873, the Haueks, manufacturing faucets at his shop, hired his brother John for a year, and his nephews a little, and wanted to hire him at his own price; but he would not; he said he had other work to do, and he never worked for them. He did not tell us what the other work was, but we know fairly well. Part of it was gainful Work. He told Hauok that he “ had work to do that he had prom— ised other parties” (Complts, i, 792, ans. 43); in November, 1873, he told his witness, Zearing, that it would take him a fortnight to do a little job of thirty- five cents, because " he would have to do it after night, as he had other work promised” (defts, iii, surrhtl, 131, x-ans. 75). He professes to give the Court an account of his in- come, hut he does not mention a cent of his receipts from his work from 1870 or 1871 to 1875, and it is all to he added to what we have enumerated on p. 341, supra. But in spite of this he could and did, while the Hanoks were there, as well as before and after, afford time, money and material for experimenting on and constructing a lot of contrivanees, which must have cost in labor and material as much as fifty or a hundred telephones. The absolute and positive fact is that he did have means and resources; what he lacked was knowledge how to make a telephone. His serenade. W} P. Chambers (defts, iii, surrbtl, 674) :— “ Q. 33. \Vere you ever at his house at Mechanicsburg; if so, when, and how happened you to be there? “A. Yes, sir; it was at the time there was a band convention held at Meehaniesbnrg. There were five or six of us took supper with him. Afterwards the hand serenaded hiin, — the same even— ing.” All those facts were before the defendants when we closed our proof in reply. The defendants occupied a year, and called two hundred and fifty witnesses in snrrehuttal, but they did 11 )t put in any proof of poverty. nor attempt to explain away their force, nor did they venture to put Drawbangh on the stand again. Eizleij/Jrz'se and liberalz'tj/ ammg his net'g/zbors.——He was sur— rounded by farmers worth from $20,000 to $100,000 each, a pros- perous and forehanded people, who had raised and invested in his shop, to be expended upon his inventions or the inventions of others under his direction, between $30,000 and $35,000 in actual l BRIEF FOR COMPLAINANTS ON FINAL HEARING. 359 money during the period covered by this inquiry (p. 238 ct seq., su— pra). Among the friends whom he went to on electrical matters, and to whom he carried other electrical inventions, but never a telephone, were Andrew R. Keifer, superintendent of telegraphs for the Penn- sylvania Railroad, and partner in the electrical manufacturing firm of Hahl, Keit'er & Co., of Baltimore and Washington, Simon Cameron lVilson, superintendent of telegraphs for the Cameron Railroad, the Northern Central, and Theophilus Weaver, patent solicitor, of Har- risburg. Ifhe had had a real telephone he could not have helped men— tioning it to these men, and a word to either of them would have insured a patent and brought the thing at once to the notice of the world, and secured its adoption and use if it existed. No serious applications for aid. — There is some attempt to show that he applied to a few persons for assistance. There is, however, no respectable evidence to show that he ever appliel seriously to any person whatever before 1876. It is certain that he never applied to any member of the Faucet Company or to the Haucks or to the members of the Mill Bush Com- pany or of the Axle Company. The only pretence of any appli- cation to anybody connected with any of these concerns is, based upon an answer of Capt. Moore of the Axle Company; but the part of Capt. Moore’s deposition which refers to this, taken altogether, cannot even support itself. He says in substance that he felt con- siderable interest in it, and told Drawbaugh “if it could be put to practical use it would be worth a fortune”; but, although he Was engaged at the shop for over a year (1875—6), when Drawbaugh alleges that he had D and E, and all his microphones, he never even tried one, and does not remember seeing any except one, which he identifies as the tin can B, then in working order, though he is not quite sure that some things he saw lying about may not have been talking machines. Now the exhibition of the tin can B, with a statement in substance that it was intended to talk but wouldn’t, would produce precisely this effect. His testimony is on p. 260, supra, and app. 2257. For a special consideration of this very important deposition, and the inevitable conclusion from it that D ard E did not exist before Capt. Moore ceased to go to the shop, about midsummer of 1876, see p. 260, supra, and p. 496, infra. 360 NO REAL APPLICATIONS FOR AID. Drawbaugh was asked who he applied to, and could only name C. Eberly, B. Frank Lee (defts, ii, 862), Capt. Moore, Henry Bayler and, Simon Oyster (2'1). 936). He cannot give dates for any of these except as mere guesses. C. Eberly has already been considered. He states it as a mere casual remark, " he intimated that he would take me in,” and he never attempted to listen at any instrument (defts, i, 121). Mr. Lee died in 1877, but, considering his position, it, is certain that if the claimant had shown him a practicable instrument it would have been made known to the community, and taken up (p. 240, supra). Capt. Moore has been considered; he never attempted to listen, and pretends at most to have seen B. He was with Drawbaugh until the summer or early fall of 1876; and the date of the alleged suggestion is not stated, though there is per— haps a faint indication of it. Bayler’s story is false as to all the facts which can be tested, to wit, his story about money, the time when he was at the shop and the alleged fact of distinct speech. Simon Oyster married a cousin of Drawbaugh’s, but is not called as a witness. We proved that he had no means whatever until after his father died, and that this occurred Feb. 7, 1876 (Sadler, complts, ii, 1042—3, 1848). The alleged application to Thomas Draper is shown by the matter of the ram (q. v. at end of brief) to have been in 1877. The alleged application to George Bricker is not credible. He testifies in substance that Henry F. Drawbangh, a man of sufficient means to run a line of market cars from Cumberland County to Phila- delphia, New York and Baltimore, said in substance that he would not furnish any money, but would like to have Bricker do so. Bricker wishes it to be believed that, without seeing the alleged machines or the alleged inventor, and upon the suggestion of Henry that he was not willing to risk any money on it, he estimated the amount, and thought seriously of putting in $5,000 to $10,000, but did not. Henry could have put a pair in his pocket and brought them home to show to Bricker, if Daniel had them, — think of asking a man to invest money in a speaking telephone before such a thing was known, and not showing itl The story is pure romance. Bricker did not know why he did not advance the money until the examining counsel suggested to him that it was probably because Drawbaugh was poor, and then he adopted the suggestion (defts, i, 532). 2 ‘4 '2 i :3 .3, i f: ‘ , MONEY FOUND FOR OTHER INVENTIONS. 361 The alleged requests made to the farm laborers of his neighborhood are not worth considering. If he had had a speaking telephone,realized,as he would have done, and as he says he did do, its value, and been (as he was not) unable to patent it, he would have made to credible men applications for aid, accompanied by exhibitions of the instrument, which not only could be proved beyond controversy, but would have led to publicity at the time. liloney foundfor other inventions in 1876 and 1878.—We have seen that he had no trouble after he had invented the telephone, according to his story, and during the ten years previous to 1876, in finding persons to advance large sums of money upon the faith of various embryonic and unpatented inventions,~—- the nail- plate feeder, the faucet, the pump. This state of affairs continued. In 1876 and 1877 Drawbaugh brought to the notice of several per- sons some inventions and improvements in electric or magnetic clocks, and he found no great difficulty in getting persons to ad- vance money to patent the same and manufacture the clocks. In the fall of 1876 he made a bargain with a jeweller and watchmiker of his neighborhood to furnish the means for patenting and making clocks, with the understanding that this gentleman, Mr. Rufus E. Shapley, had $2,000 ready money which he was disposed to embark in some enterprise. Mr. Drawbaugh carried one of his clocks to Mr. Shapley’s store, set it up, and Mr. Shapley, in the course of the ensuing few months, built one himself on the same model. Mr. Shapley did not put any money in it afterwards, except $20, which he gave Drawbaugh at the outset, because it behaved as most electric clocks have done for the last thirty years, to wit, did not keep correct time (complts, i, 598). In 1877—78 Draw— baugh arranged with some friends of his to take up the clock business, and they paid him for an interest in it $500 cash, agreed to pay him more thereafter, and to furnish the money for machinery, materials and Patent Office expenses (defts, i, 220). In the fall of 1878 he called the attention of others of his friends to a modification in molasses faucets, and found no diificulty in mak- ing a bargain with Edgar M. Chellis and John W. Motfitt, of Har— risburg, to supply the funds for it. That enterprise has a peculiar 362 BRIEF FOR COMPLAINANTS ON FINAL HEARING. value in this case, for the reason that it was the same Chellis— a man of some means, keeping a 99-cent store in Harrisburg—who eventually was the chief person in bringing Mr. Drawbaugh forward as the inventor of the speaking telephone, under circumstances which will be hereafter detailed. The whole pretence of abject poverty—the only explanation oflered for the fact that this professional inventor and patentee, ad- vertised as a solicitor of patents, never applied for a patent on a. speaking telephone, nor made one for sale, is absolutely without foundation. Indeed, when one considers that it is alleged, not as an obstacle to ten years of work, but only as something which hin- dered the extra Week needed to gather the fruit, the mere statement of the excuse shOWs how purely artificial a concoction it is. Drawbu/ugh a worthless witness. What has occurred to make of this claimant such a witness? He swears that at a time before he made C, and which, according to their depositions, must have been before 1870, he heard advertise- ments and he read through his instruments F and B. Harmon Drawhangh swears that they did not even try to get words at that time; and the Court knows that if they had tried it could not have been done. He tells all these stories about his finances; he is a party to putting Baylor on the stand to swear to his atrocious false- hoods, the truth of which, as now proved by the papers, Drawbaugh had narrated under oath only about a year before. He has attempted to pass himself off on the Court as a man in a destitute condition, in utter want of proper tools and appliances to make telephones. He has told the falsehoods exposed by our fortunate finding of his adver- tising card. Is he a man who deliberately sets to work to concoct perjuries ?‘ Is he a man of worthless memory, — a facile tool in the hands of these men who have bought him up, covered his house with mortgages and fed him with their daily allowance? The Court, reading his deposition, will perhaps come to the con- clusion that he has not the slightest memory about anything, especi— ally dates; that he knows that he has not; or else that he does know and is unwilling quite to take the responsibility of swearng to false- hoods, while he is ready enough to profit by them and half acquiesce DRAWBAUGH A WORTIILESS WITNESS. 363 in and half confirm them with the salve to his conscience of saying in almost every answer, ”I am not positive,” “I don’t well remem- ber.” If he is unwilling or unable to take the moral responsibility of swearing squarely, so that he can be put to the test, and not shield himself by vagueness, the Court cannot do it for him. A few answers may stand as types of the Whole. After being called to state at what time he knows or believes, or concludes from his memory of surrounding facts and circumstances, that the instrument C was made, he gives the following as the whole of one answer (ans. 782, defts, ii, 928) :— "I don’t know; I don’t remember the dates, you know; I am inferior in memory of dates; I paid no attention ; it may have been; I can’t say; I don’t know whether it would be a fair conclusion or not.” And again, ans. 785 : — “ It may have been made as early as the first of 1869; I can’t say.” There can be no instruments so important in this case as D and E. Their advent marks the turning point between the worthless instruments and the first set that could speak. A real inventor, wanting to tell the truth to the Court, never could forget when these came. When an outrageously leading question asked him whether they were not made in January or February, 1875, before the Axle Company received its new machinery, his answer was (defts, ii", 827) :— "A. [have no recollection of the time, but I recollect of him working on the machine; one of them was made before that time; what 1 mean is, there was one of them made, and Harmon made, or helped to make, the other; it has been quite a long time ago; [can’t remember the year or date of it.” - Instrument N is supposed to be alleged as one of his later 'n— struments, certainly not more than three, and we believe not more than one year old when he testified. About that he says (defts, ii, 851) 2— ‘ "Q. 349. State as near as you can the time when you made this instrument N. "A. It is a little hard for me to state the time, —just as in the others; working on so many, I have entirely -lost the time of this 364 BRIEF FOR COMPLAINANTS ON FINAL HEARING. one and others. I couldn’t give the accurate time of any of them; not all, but some of them. C instrument I had circumstances to fix the time by; them that I had no circumstance to fix the time by I can’t give the time of.” After he first got an instrument which would talk, the next start- ling things were the finished instruments L and M, which are com- pound magnetos and microphones of a very highly organized charac- ter. They were the first microphones he made, and, according to his story, the first that ever existed in the world; and yet he testi- fied (defts, ii, 833) :-—— "Q. 295. Were these instruments L and M made before or after the little magneto instruments D and E? “A. After, to the best of my recollection.” The next pair of microphones was Grand 0. He testifies about about these (defts, ii, 833) :— “Q. 297. Were these tWo instruments G and O, or either of ' them, made before H was made or not till after? "A. They were made after the instruments L and M; Ithinlc, to the best ofmy recollection, that they were made before Exhibit H, but I won’t be positive about that, there were so many made that Ihave lost the exact order; I am positive that they were made after L and M.” The Court knows that it is impossible that an inventor of these con— trivances, especially of a contrivanee so peculiar as H, ——a large box a foot high, containing many inventions not found in the round instru- ments G an O, — could fora moment have forgotten, even if the time were as long as he alleges (five years before testifying), the order in which they grew in his mind and were made. But he says that he does not know. The next instrument, and the most astonishing of all, is the tall sloping instrument with the bell on top, H, a copy of the Blake transmitter, so far as could be seen upon a short inspection. It is one of the most highly organized instruments in the world, and yet this fellow pretends that he does not know when it was made. Here is his testimony about it (defts, ii, 827) : — “ Q. 267. Please look at the instrument H, which I now put in evidence to be marked ‘ Exhibit H,’ and state what it is, and who made it. DRAWBAUGII’S LACK OF MEMORY. 365 "A. It is a telephone transmitter; I made parts of it; parts may have been made by some other patties, I don’t remember who, but I often had George W. Drawhaugh to help me make some of the instruments. " Q. 268. Do you recollect when this instrument was made, so as to fix the time? 7 ”A. Not positively; I don't know any date particularly. " Q 269. Several witnesses have testified to seeing this machine either completed or in process of completion in the fall of 1876: What is your recollection as to that fact ‘3 " [Objected to by 1111'. Storrow as leading and incompetent] "A. The time elapst —jnst judging the time, it may be at that time or before; I had been making a good many of them ; I paid no attention to the time; it has slipped my memory.” Drawbangh’s knowledge of acoustics (pp.95, 285, supra) did not carry him beyond the possibility of the Reis circuit-breaking musi- cal te'ephone. The defendants never dared to ask him how he came to the speaking telephone. In the work alleged, nothing after the first conception was more wonderful than the variable-resistance transmitter dependent upon the ability of carbon and of other sub- stances to vary their electrical conductivity under changes of pressuie. If he had discovered that himself, or, by reading the fact elsewhere, had applied it from his own invention to a speaking tele- phone, he never could have forgotten it, and yet all that he can say about it is (defts, ii, 804) :— “ Q. 150. Do you remember how you first obtained knowledge of that fact, that low conductors when under pressure would conduct the current more freely than when not under pressure; that is to say, did you learn it by reasoning it out and then testing it, or by accidental discovery, or by reading it somewhere, or by hearing it from some one, or how? - “A. I don’t remember how I came to it; I had been experiment- ing in that direction; I don’t remember of getting at it by accident, either; don’t remember of reading it; I don’t remember of any one telling me of it ; I don’t suppOse any one told me.” There is only one conclusion that a Court can come to. Memory does not play such pranks with an inventor. If he cannot fix days and months, he can fix years; if he cannot name any date, he can remember the sequence. In 1878 he knew and declared that he had no speaking telephone before Mr. Bell; he knows it to-day, but he shelters himself under the plea that he cannot remember, while he 366 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. wishes to profit by the misstatements of others. He has not read history enough to know that for two generations the utterance of that excuse brands the man who offers it as a liar. He exhibits a phenomenon not unfrequently met With in patent cases, where a man of irresolute conscience and irresolute will has become a tool in the hands of stronger men. Growing day by day half deluded and ready to believe of himself what he daily hears about himself, though he began by denying it, his vanity tickled and his cupidity aroused, doubtful sometimes himself What is due to memory and What to the Wish that is father to it, he says half believingly what he wishes were true, but, knowing that it is not, he silences his conscience by coupling the assertion with expressions of doubt and imperfect recollection. He will profit by false stories from others. Yet sometimes, as in the case of D and E, he cannot bring himself to what is wanted, and balks. Such Witnesses are more dangerous than courageous liars, for they will go further. The only safe course is to reject them. There is no better test for their detection, besides knowledge of the influences to which they are exposed, than the constant use in question or answer of the phrases “ best of my recollection,” " so far as I remember,” etc. There has never been a book so full of this matter as the whole of the defendants’ record. But we come in this case upon matters which are perhaps more di— rectly serious. His assertions about the capacity of F and B, com- pared with what his own improved and untruthful so—called repro— ductions can do, are too absolutely false, upon the most material parts of the case, to be excusul (pp.160—6, supra). His story about his “ patent-solicitor” matter; compared with the card we afterwards discovered (p. 197) ; his putting Baylor on the stand to swear to a story which his own affidavit of the year before, as well as the ac- counts, prove to be exactly the opposite of the truth (p. 355, supra) ; his list ot inventions, which he does not dare to come 011 the stand to exp’ain (p. 199, supra) , and many other things, cannot be reconciled with honesty. He is very fond of using the phrase, " at an early day.” What does he mean by " an early day ”? Of course he means at least this: that it was early in his telephone work. Now, once in a while . - DRAWBAUGH AS A \VITNESS. 367 he gives us an answer which enables us to get a little more definitely at the facts and dates under which he feels at liberty to use such a phrase. He alleges that he invented the phonograph, and he says (defts, ii, 992) :— “XA. 1091 (p. 992). I constructed one; the time I don’t re— member, but it was at a pretty early time; though, when I con- structed that, I didn’t make it a speaking phonograph.” Now we have the means of finding out What year he means to sig- nify by the words " pretty early time.” On redirect examination he says (p. 1093) :— “ Q. 1599. Do you remember whether your phonograph experi- ments were before the Axle Company began operations, or not? “A. I don’t think they were before the operations began. “ Q. 1600. Do you remember whether they were before you moved to Mechanicsburg, or not? "A. I think so.” “A pretty early time,” then, means, not before the spring of 1875, and, as near as he can recollect, about the spring of 1876. Is a man who calls the season when the Bell patent was issued "a. pretty early time ” to be trusted in his vague generalities about dates in alleged anticipation of that patent? BRIEF FOR COMPLAINANTS 0N FINAL HEARING. THE DEFENDANTS’ PROOFS. We know in general terms what the defendants allege. First of all we now need to ascertain exactly what, stripped of color and - padding, is the evidence which the defendants have produced in support; then we can intelligently consider whether it is strong enough to carry the burden of such a story about such an invention ; and whether it can carry it against the added weight of the admitted facts and of our countervailing proofs. The inquiry what the de- fendants’ record contains is a serious one, for while parts of it tend to support their story, other parts, equally conspicuous, directly overthrow it, so that we have to consider what their record furnishes on both sides; to set off a part of it against another part; to ascer- tain which way their own proofs really preponderate in weight; and then the Court will have to determine what value in the administra— tion of justice in such a case as this comes from a record conflicting in itself, — whether a house so divided against itself can stand. For it has often been decided that substantial inconsistencies in the claimant’s proof are such persuasive evidence that his witnesses tell an artificial story, and not the true record of his life, that a Court will not trust it. We shall now state briefly the substance of every deposition which alleges that the deponent heard or attempted to hear any sound through any of the instruments at Drawbaugh‘s shop before the DEFENDANTS’ PROOFS. —— GENERAL NATURE. 369 summer of 1876. A full abstract of each one of these depositions, together with the other proofs specifically relating to each, is given in the appendix at the pages cited, and to that we refer the Court. All we undertake to do here is to give a brief summary of them. Sight—8967's. -—There are other witnesses who allege that, being at Drawbaugh’s shop, they saw talking machines, but did not attempt to listen at them. It seems to us that such testimony weakens rather than strengthens the proposition which the defendants have got to prove, namely, that he had perfectly good talking instru- ments; for, if they were good talking instruments, one can hardly doubt that he would always have had some up ready for use; and one can also hardly doubt that if he took the trouble to show them to any one they would have talked through them. A full abstract of all these sight-seeing depositions is given in the appendix. Those who say they heard are enough in numbers; if they are not enough in strength, the weaker sort will not help them; and the same proofs and causes which discredit the one discredit the other. Words, not acts. ——The complainants have brought many wit- nesses, and found many others in and from the defendants’ record, who, in a position to have known of speaking telephones if there had been any there, and to have acted upon that knowledge, are sure that they never heard of any, and who, by proofs other than mere recol- lection, are shown to have acted as if they never heard of any. In the case of all these witnesses, their lives confirm their word. But every witness for the claimant, like the claimant himself, comes into court under a cloud. They say that they well knew, if their depo— sitions amount to anything, that there were practically operative speaking telephones there for ten years, yet they never put them or sought to put them to any practical use ; and what he did at his shop, widely known, as they assert it was, never taught anybody how to transmit speech nor led anybody to so much as want or ask for any of his instruments for that purpose. The story these men tell from a ten or fifteen years’ old recollection is discountenanced by the life which they led and which every man connected with them led. Their actions falsify their words. It does seem to us that the sight of an operative telephone, when it was an entire novelty, would lead a mail at least to try it; and 370 BRIEF FOR COMPLAINANTS ON FINAL HEARING. that a trial of it, if successful, would lead to the practical use of it, or at least to some attempt to use it; that it would lead to some consequences. But no consequences ever did follow from anything done or seen at Drawbaugh’s shop; many (they say) merely glanced at it and turned away to something which impressed them more, —- a landscape drawn on the wall, a carpet rag needle, a lathe not in use,an emery wheel; not one in three cared to listen at it; some stood by and saw others listen, but did not even have their curiosity aroused enough to put their car to it, or if any did, a. feW moments satisfied their idle curiosity (or satisfied them that they could hear nothing), and they leafed in the shop on later visits day after day without ever listening again. It is task enough for the Court to assume that such things can be; but, besides this, the Court is asked to believe that all these men to whom it was thus a mere un- impressive incident, have, after ten years, a memory more sharp, more vivid, more reliable about it than about anything else. Memory does not so work; and that it does not so work with these men is perhaps best shown by the assurance with which they assert that they rarely or never saw him at work on anything else, when his cross-examination specifies other work, which must have occupied three fourths of his time at. least; and by the appearance of belief with which more than half of the alleged hearers swear that they heard perfectly intelligible speech through instruments which the Court knows cannot transmit it. Such assertions may be the prod- uct of recent grocery-store gossip, where each neighbor strives to outdo the other, but not of memory. They are no nearer to true recollections than the impulses of a mob are to the deliberations of a senate. Leading questions. —The defendants have habitually put in their testimony by means of leading questions. The witness was generally asked specifically it he had not at a certain Visit or at a certain time seen a talking machine, and when it came to a question of identifica-= tiou he was rarely asked to pick one out from all the instruments shown, or to describe it; a particular instrument, or two or three instruments were generally thrust before him, and he was asked to state whether those were what he saw at a time named. The reason for this is apparent from certain cases where a witness, having alleged DEFENDANTS’ PROOFS. -—GENEHAL NATURE. 371 a Visit at a certain date, and being asked to pick out of all the ex— hibits those which he saw, selected instruments which, by the defend— ants’ own confession, were not made until several years afterwards. The Court knows that experienced counsel do not habitually adopt that course except from necessity. 2V0 witness for the defence is able to describe what he saw.—‘Vith the doubtful exception of one of Drawbaugh’s family, about one in- strument, no witness pretends to have known how any instrument operated, nor how any were made, so that if Drawbaugh and his box of instruments had been destroyed, all knowledge of what he had done (whenever it was) would have perished. It is admitted that the public never learned from him how to t‘ansmit speech. Such a con~ dition of things does not constitute in law a disclosure to the public, either theoretical or practi ‘al (p. 100, supra). But more than that, no mass of witnesses whOse observations Were s') cursory and whose intelligence was so low, can offer sufficient proof to identify instru— ments or afford a basis for judicial action in such a case. Drawbaugh’s deposition. — This ought to be the most valuable to the defendants. It is not; they know that it is not. One seldom meets a deposition which, on its face, is so vague as that of the claimant. Almost every answer, both of direct and cross-examination, contains the qualifying phrases, "I don’t remem- ber,” “I am not positive,” "As near as I can tell,” and the like. Some samples of these are collect'd on p. 363, supra. It is plain that the claimant himself has little confidence in his own recollec— tion, or else that he has been strained to testify to a story which goes beyond his own belief, and he salvcs his conscience by this vagueness of statement and pretence of poor memory. It is diflicult to understand that a man for so many years was so much engrossed with such an invention as this, if there be any substantial truth in his story, and yet could have any doubt or appearance of doubt upon the main facts of his history, the causes which led to each and connected the several steps together. Other depositions in the same kind of dallying with consciex ce appear throughout the depositions in the defendants’ record. Their witnesses are men of such poor intelligence that they have but a low sense of the responsibility which a Witness as— 372 BRIEF FOR COMPLAINANTS ON FINAL HEARING. sumes in testifying. They are undertaking to tell the Court about a matter which did not interest them, and to which they paid no attention, and which took place, if the story be true, many years ago. To get them even up to what they swore to the defendants found it necessary in nearly all the cases to ask them in terms to testify merely “ to the best of their recollection,” “as near as they remember,” and that kind of qualification when not put into the question is generally found in the answer. Such men think that they excuse themselves by such phrases from any care about asserting facts which they do not know to be true, by saying to themselves that they did not state it positively, but only that they thought so, or that it was so as nearly as they recollect it. That this course of examination was hrbitnally resorted to is enough to satisfy the Court that the defendants know that the so-called recol- lections are too vague and uncertain for the needs of such a story in such a case. Thus Orris says (defts, i, 185) : ~— "‘ X Q. 56. Did you make an affidavit about them? "A. I told them to the best of my knowledge; I couldn’t just think ofz't at that time. "X Q. 57. Did you sign and swear, or affirm to a statement at that time? “A. Yes, to the best that I Ix’nowed.” Association of alleged events. — The defendants habitually made a witness fix a date by having him state that a Visit at which he saw something which he thinks was a talking machine was at the same time, or about the same time, as some other event which has no necessary connection with it. Such testimony depends merely on memory,—-and there is no memory more delusive than that which attempts to associate by its own exertion two events which have no necessary or logical connection ; for, with unreflecting men, the mere at'empt to do s) leads, by a familiar process of self-delusion, to a feeling of certainty which neither the man’s real memory nor his circumstances in the least justify. A man states that he rather thinks it was probable at a certain time when he saw a certain thing; and then he is asked in conversation where he lived at that time, and presently he is asked whether he did not see that thing when he lived in such a house, and he thinks he did, without any necessary connection between the two. And by and by it grows in his mind DEFENDANT’S PROOFS.—— THEIR GENERAL NATURE. 373 to a certainty. The books which deal With such subjects point out this kind of association as one of the most fruitful sources of error and false testimony. Judge Lowell has characterized it very well in the case of Woodman v. Stimpson, quoted p. 126,supm. And we have some very good illustrations in this record; 8. 9., George W. Drawbaugh (app. 199) ; A. Fisher (app. 233) ; U. R. Nichols (app. 29); H. B. Musser (app. 89). There are other instances of proved false associations. When a witness swears that at a certain date fixed by nothing bet- ter than simply arbritrary associations resting purely by memory that he went to Drawbaugh’s shop, and he and Drawbaugh being there alone, saw or did or said certain things, it is, in the nature of the case, impossible for us to contradict him directly. The law which permits such testimony to be offered also furnishes the rule by which to test its value, — protects the community where it cannot otherwise protect itself. " It is certainly a maxim,” said Lord Mansfield, “ that the evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.” But we haxe been able to show as to a very considerable por- tion of the witnesses that the dates of the visits alleged were at an entirely different time from what they swore to. Sometimes we have simply broken up the chain of association, as in the case of Fisher, above stated. Such a witness goes to pieces for all purposes. In other cases we have conclusively proved that the visit was at a pe- riod after the Bell patent, and not before; and in several ofthese cases the facts of the conversation which the witness testified to, when transplanted to its true date after our patent, are such as to end the ease. Fisher swore that he went to Drawbaugh’s in 1874, and alleged that he fixed the date by association with events entered in his ac- count book. His visit was to buy a ram; he swore that he then saw A, and has not been there since; and he said that be fixed the date of the ram by an entry at home, which he did not produce (defts, ii, 718). Presently we found that in the faucet interference Draw- baugh had produced one of those memorandum books with sketches, which they do not produce new, and read into the record froni it, as 374 BRIEF FOR COMPLAINANTS ON FINAL HEARING. a means of fixing a date, an entry of this very ram; and it was June 7, 1873. On cross-examination by us (defls, ii, 1058) he admitted that this entry was for this ram. Whereupon the defend- ants were forced to recall Fisher, and then he admitted that the ram was got in 1873. He told a story which illustrates the worthless- ness of such associations. After he had testified, the complainants wrote him asking him for the memorandum by which he said he fixed the date, and he replied merely that he had verified the date. Then he met a neighbor who had helped put in the ram, and they discussed it, and he said, ” Well, it was the year that Jacobs worked for me, — in 1874.” Then he wrote again to the complainants that he had talked to some of the neighbors and to Jacobs’s family, and that they all agreed that he was right. Then they all talked it over again, and they came to the conclusion that he was wrong. Snyder put in the pipes for the ram, and he said that he knew that he quarried stone for a milldam for Abraham Smith in 1874, and he knew the ram was put in the year before. And William Snyder said that he knew it was in 1873, from different places which he had rented from year to year. And then his wife said that Jacohs’s family was with them two years, and he concluded that they were with him in 1873,'although he had no charge in his books, because he says he paid them off every Saturday night. This kind of so—called proof was no more likely to be correct than what he Ofl'ered before; but after the entry which named this ram in terms had fixed the date, associations were founcd which conformed to it. The difficulty in which this lands the defendants is that, even according to their story, A did not exist at the beginning of June, 1873. Apart from their general statement of date, there is one piece of testimony which, if believed, makes this absolutely certain. That very week or the week before, Henry Bayler says that he was there and that Drawbaugh showed him a telephone and talked through it in the hope of getting him to put money in it; ofcoursc he saw the best, and he says that what he saw and heard through was nothing but F and B. Clearly Fisher swore to something that he never saw. He found in the defendants’ chronological scale an instrument to which they had tagged a date that agreed with what was supposed DEFENDANTS’ PROOFS. ——-PERVADING WEAKNESSES. 375 to be the date of his visit, and his memory was pliable enough to bring him to that. It is like the anecdote which Judge Lowell told in Woodman c. Stimpson, p. 126, supra. George W. Drawbaugh furnishes another good instance, which is told more at length in app. 199. He says that he first heard of a talking machine When he painted a certain wagon, and at some time or other, which of course was not before that, he mentioned it to Joseph Ditlow, and Joseph Ditlow mentioned it to Reed, and they all prove by evidence as good as anything the defendants have, that it was in the spring of 1870 that Reed, then living in the West with Ditlow, heard of it. George Drawbaugh fixes the date by swearing that he bought the lumber for the wagon from Lee, and Lee’s book showed that the last lumber sold to George Drawbaugh was in the spring of 1870. The connection seems almost logical and necessary. But presently it turns out that the wagon was bought by the firm of Drawbaugh & Sadler—Daniel Drawbaugh and Jacob Sadler—to carry around Drawbaugh’s hydraulic rams in, and a bill made by ~ that firm, and other proof, show that it was not formed until 1871. Drawhaugh said that he remembered that a boy by the name of Nor- man Kahney was with him when he was at work on that wagon, and Norman Kahuey did not move to that part of the country until the 'spring of 1871. With that goes down the whole superstructure. This record is full of just such falsities. Now, when a witness goes to pieces in such a way he is destroyed for all purposes. He is proved unreliable for all, and it is of no use to go fishing about and guessing whether the incidents might not have taken place at some other year before the Bell patent. In a subordinate issue which arose in this case about the date of a certain other hydraulic ram put in on the Draper—Kissinger farm, one set of honest witnesses, the Heisley family, was brought to swear that they had a log-boring auger in the early spring of 1875 for the last time; that George Kissinger got it immediately afterwards and bored logs for his ram. And thereupon the defendants built up a ' whole superstructure of a dozen or twenty witnesses who saw Kis- singer boring these logs, and saw the logs bored, etc., etc., in 1875 and the early part of 1876, and saw the ram in and working in the last part of 1876 and in 1877. They brought twenty or more such 376 BRIEF FOR COMPLAINANTS ON FINAL HEARING. witnesses; among them were men who said they moved away in 1877, and never came back. It was all false. It turns out that when the Heisley family had this auger it was out of order; they took it to the blacksmith for repairs; he made them a reamer to go with it; and the blacksmith’s books produced by us have got the charges for bothin the spring of 1876, and in such a way that, in connection with other charges, that there could be no mistake about the date. Thereupon the whole Heisley family came back on the stand at our request and stated the error they had fallen into. Another one of their set of ram witnesses swore that he put in pipes of his own in May, 1875, and while doing it or just before, went to see Kissinger, who was then boring with that auger. After- wards, we found out that he remembered seeing them put in the ram and seeing a particular stonemason stone up the pit at the time, and that he took up and relaid his own pipes after he first put them in. The stonemason had a charge for the work, and it was in November, 1878. Finally we found a letter which Draper, the owner of the farm, wrote to his agent, Eppler, in December, 1877, complaining that the ram had not been put in, and still ought to be. There was an end of thirty or forty witnesses. , Urias R. Nichols, one apparently good witness, swears that he went to Drawbangh’s shop in January, 1875, and never but once, and saw A, the first finished instrument, and was told that it had been made sixty days. It is proved beyond the possibility of ques— tion and without contradiction that this man’s visit was not before the first of February, 1878. One line of proof which establishes that, -—and there are several, — is that he says himself that he went there in consequence of reading an article about Drawbaugh’s clock in the Harrisburg newspapers; in fact there was no such article until 1878. Now what becomes of the case when the defendants’ own wit- ness, put on the stand to swear, in the presence of Drawbangh, that at the only visit he ever made to that shop he saw A, and was told it was two months old, is discovered to have heard this declaration two years after our patent instead of one year before it? There are several matters about Drawbaugh’s shop and work, the DEFENDANTS’ PROOFS. -— PERVADING WEAKNESSES. 377 dates of which are well fixed chiefly by his own testimony. At a. certain time he made some huge electlic clocks which attracted a good deal of attentlon. At various times the partitions of the up- per story, where his exhibitions took place, were changed. It has happened that more than one witness, in describing what he did or saw, has described the condition of the partitions and the rooms, or the clocks that he saw at the same time, and thus absolutely fixed that his visit could not have been before certain dates, and were long after those alleged for the visit. If the witness is entirely wrong about this, he at least shows that he is untrustworthy; but he is not likely to be wrong about such an association, for if he has any such memory of the occurrence as would enable him to fix a date, he must have a picture on his mind of the arrangement of the rooms or the presence of a large electric clock six feet high as a part of his mem- ‘ ory. Moreover,——and this appears to 11s to be a matter of great importance, —things of that sort are brought out f1om a witness Without any of the previous t1aining and preparation, which is the curse of contested cases. Such parts of the depositions rcp1esent at ’ least the real recollection of the witness. We shall take up first the inst1uments F (broken tumbler), B (tin can), C (b1eastw0rk instrument), I (cuspidor- shaped instru- ment), A (round flat instrument with mouthpiece at one side). The drawings of these are on pp. 137—142, supra. We shall afterwards take up D and E separately. The most vital testimony of wit- nesses touching them is whether the witnesses did actually hear good intelligible speech through them. Unless their testimony comes up to that, it is legally worthless, for, as has been al- ready shown, no witness is able to really identify any instrument; that is, to identify the operative parts; for they never saw most of them, and could neither have understood nor remembered them if he bad. If the testimony of these men proves anything, it proves that they heard perfectly good speech through F and B. They assert this. It is the material thing which they are brought into court to assert. The Court now knows, from the tests which we compelled the defendants to make, even of improved forms of alleged restorations of those instruments, that none of the men who went to Drawbaugh’s shop, if they did listen at F and B, ever heard any 378 BRIEF FOR COMPLAINANTS ON FINAL HEARING. thing that could be called intelligible speech through them. That is an ultimate fact, and whatever recollections run against that are broken. The rule,falsus in two, falsus in omnibus, technically refers to men who, being detected in a lie in one matter, are not trusted about others; but in such cases as this it strikes out a whole deposition, where we find that a Witness, upon the material point for which he is ofl'ered, is as wide of the truth as the difference between Yes and No. The Court can only tell the parties to take that man away ; that he is not one on Whom it can rely for the judicial certainty which the law requires,——and justly and reasonably requires,—in cases of this description. Nor is that all; for when we find that a large proportion of witnesses has sworn upon the materialrpoints for which they are offered, either of dates of visits, or capacities of in- struments and results, to that which the Court now knows is false, the Court becomes aware that some cause exists which taints the whole record of which these depositions form on their face a fair sample. Such are some of the fatal infirmities of the defendants’ record. It is such a record, upon such supposed mere recollections, so often proved to be treacherous, that is all the defendants have to ofl'er to overcome the plain proofs from this man’s conduct, from his Whole life and history, from the other documents which refer to his inven- tions, and from his own statements abundantly made and proved against him. We can better estimate the value of the observations which those witnesses made, and which after many years they undertake to re- port to the Court, by considering what there was to come under their notice. Drawbaugh was a man looked upon by the country folk as a genius who could accomplish the impossible. The familiar tricks which a. smattering of electricity and chemistry enabled a man to exhibit seemed to them miracles. Perpetual motion would appear to them a thing natural and easy to accomplish. One of their witnesses, D. H. Good, testified (defts, i, 529) :— " X Q. 15. When you heard him say that he had got a machine that would do what you have stated it would do, I suppose you be- DEFENDANTS’ PROOFS. — PERVADING WEAKNESSES. 379 lieved right off that he had got such a machine, and that it would do it, did you not? “ A. I have every reason to believe it. " X Q. 16. What do you mean by eevery reason’? “A. I never knowed him to say anything of the kind but what he brought to perfection, in the way of machinery and invention. " X Q. 17. Did not it strike you as rather a startling kind of machine, if it could do what he said it could do? "A. Yes, sir. " X Q. 18. And, notwithstanding that, you were ready to believe right off that he had invented and made such a machine, just be- cause you heard him say so to two men in your store; is that so? "A. Yes, sir.” “ X Q. 10. Do you think that the most of people who knew him in that community were disposed to accept his remarks about his own inventions with the same confidence? "A. To a great extent.” His shop was full of all manner of contrivances and models. There were Wires running all over it for his clocks, his signal bells, his dial telegraph, his fire alarm and the like. There Were batteries and coils and magnets. These ignorant men, who admit that the tele— phone was to them a mere, hardly noticed, incident—~looked upon as a toy,—-have to go back eight or ten years and pick that out from all they saw and heard. One cannot read their depositions without seeing how artificial their memories are in this respect. The story of most of them (see quotations, pp. 329 et seq., supra) is that, during the ten or a dozen years under inquiry, they never saw Drawbaugh working on anything except on the talking ma- chines. This we know to be false, for the other work already recited must have covered ten or twenty times as long as all 'he did on the talking machine, if his own story of his own work be taken as true. Either these men have been brought to a condition. where, with- out any recollection, and merely romancing, they can think of nothing and see nothing but talking machines; or else they have honestly and stupidly been brought to believe that the other things that he was working on were talking machines. In either event they are worthless. Nor does this matter rest simply upon these facts. Defendants proved that some of them entirely mistook, -—thus,-for example: Capt. Moore, one of the most intelligent of the whole lot, swears 380 BRIEF FOR COMPLAINANTS ON FINAL HEARING. that Diawbaugh showed him a talking machine; told him that it was to wo1k by a magnet without a battery, and was to take the place of the fire alarm. We know that no telephone ever was capa- ble of doing that, or was supposed by anybody to be capable of doing that. But we also know that Drawbaugh had a magneto key, which was to be used without a batte1y, and which he hoped to be able to use on the municipal fire alarm in place of the contrivances then used on them. We know this as a fact, because he took it. to the cou- structor of the Harrisburg fire alarm with that view, and because he had in print advertised it for that purpose in 1874—5 and 6 (p. 323, supra). Another man, N. W.K11hney (defts. i, 289), says that Draw- baugh told him that he had got a Mechanicsburg man to go in with him 011 the telephone, and another, Shopp (defts, i, 407), said that he was going to exhibit it at the Centennial. We know ftom Drawbaugh’s own testimony that no Mechanics— burg men eve1 did talk of going in with him on the telephone, but that some Mechanicsbmg men at two diffeient periods did p10pose to go in, and two of them ultimately did go in with him 011 the clock; and we know that he did intend to exhibit the clock at the Centennial, because his nearest f1ie11d so wrote in the newspape1s just before the Centennial, and he so stated to several witnesses (p. 206,81111ra). Again, one of the most striking i11st1uments produced 1s H, the till imitation Blake t1ansmitter with the sloping front and the bell on top. Most of the witnesses 1eeoguize it by the hell on top. Now we know as mattei of fact, from his own moss-examination, that he had in his shop from 1873, or there abouts, until the present time, some alarm bells to be 1ung by a m1gneto key, and that he was endeavoriug to 111r1nwn that the whole family, in- cluding the claimant himself, afford no evidence which even tends to show that the earliest practical instruments alleged (D and E) were made before the Bell patent. Upon other matters their testimony is equally inconsistent with the defendants’ story. If the whole be taken, then the Court is asked to believe that Daniel had had prac- tical speaking telephones, and that everybody knew it six years before he even spoke on the subject to either of his brothers; that Henry, a man of means, never found anything in them to justify the outlay of $100; and that John, when he tried them, could not even then understand anything. The most that John can say he ever heard is " some words, not all.” It is alleged that he disap- proved of Daniel’s work; Daniel could have convinced him in five minutes, it' his machines were what he now pretends, and must prove them to have been to make a defence. When Daniel boasted to him, he did not reply that if the instru— ments did all he claimed for them they would be worthless; he did not believe that they would talk; and he knew if they would that Daniel would patent them; so his reply was, "Dan, if this is as good and as profitable a machine as you represent it to be, wily don’t you get itpalented?” Dan did not reply to him, "I can’t raise $50.” He makes that reply to the Court; his brother knew better; they dropped the subject. THOSE WHO SAY THEY HEARD IN 1873. 407 He did not get it patented. The defendants" case depends upon making the Court believe that the failure to patent was not because Drawbaugh did not believe it to be as good and as profitable as they now represent, but because he was notoriously too poor. His brother knew only the former reason; poverty never; occurred to him as the obstacle. Does the Court to—day know better? Henry also applied to Daniel to pay half the support of his father. 1111869—73 he did contribute $51,400. About 1876—8 Henry, not aware of the abject poverty which the Court is now expected to be- lieve, applied to Daniel again to help support him as the most nat— ural thing to do ; and the only reason why Daniel did not was because his own family was so large that it was not convenient to take an- other into the house (H. F. Drawbaugh, complts, iv, exhibits, 116). Is the Court to believe now what the brothers did not then? Henry’s testimony about the talking machine amounts only to this, that in 1872 he first heard of that which every one else (we are asked to believe) had known of for five years; that he then heard good speech through instruments which the Court knows cannot talk, and that he does not remember much about trying a talking machine again until after May, 1876. ' Finally 1111's. Drawbaugh, much talked about as taking an active interest, is not called. Daniel Fettrow, living under the same roof with Drawbaugh all these years, and a frequenter of his shop, knew nothing of it until (so they say) Drawbaugh had had it eight years and shoWn it to a hundred people. Up to that time Fettrow says that all he knew was that he had heard the neighbors speak of Drawbaugh’s attempts as tomfoolery, while his son, \Vllliani Fettrow, a constant frequenter of the shop then and now, is not called at all. We continue with witnesses of 1873 :— No. 8. rifle/me? P. Sm‘i/ser, defts, i, 78; app. 33.—llas known Drawbaugh twenty—five years. Says that upon an occasion, which he asserts to be 1872—3, Drawbaugh showed him a talking machine. “ Q. 17. Please explain how he exhibited it. Tell us all about the exhibition. “A. 1Ve went into the cellar or ground floor, Mr. Drawbaugh and I; a boy, whom I suppose to be Mr. Drawbaugh’s b0y,~—I did 408 MICHAEL P. women. not ask him whether it was his boy or not,-—was there, and Mr. Drawhaugh told the boy he should sing a piece and we would go up stairs, that is Mr. D‘awhaugh and I, where this box (indicating B) was connected with the other by the green coil, or wire, whatever you may term it, and he said I could hear it distinct; I took partic— ular notice when we went up stairs, that the doors were shot after us; we went into the room where instrument B v: s — the tin box. The boy sang a piece, ‘Don’t you want to be a Christian while you’re young?’ I heard it just as distinct as if the boy would have been in the room where I was listening at the box. After the boy had sang the piece, Mr. Drawhaugh told (him to whisper. He counted five in a whisper, in this way, ’ one, two, three, four, five’ (whispering) .” The Court will observe that the witness and Drawbaugh were up stairs. This boy, then between five and six years old, was left with the transmitter F in his hand to go through the performance. He must have done all the adjusting and readjusting that was done. One who reads the anxious struggles of the experts for the defence in the New York tests, when with great additional pre tautions and assistance they were using F reproduced, a far better instrument, and only got an occasional word, can realize something of the results which would be reached if the far inferior instrument, F, were in the hands of a boy six years old and he were left to adjust, readjust and talk through it. Plainly this story is a wild falsehood. As to dates, the witness has very little to go by. From the time alleged up to the commencement of this controversy he has con— stantly visited Drawhaugh’s shop, “ some years maybe a dozen times or two dozen times, .I couldn’t positively tell how many ” (p. 81). Drawbaugh was always working upon talking machines; and he has seen most of the exhibits there at some time, but cannot give any dates for any of them. Finally, he says that he saw J in 1880 or 1879 for the first time (ans. 52, p. 83), and cannot recollect having seen H before he saw J (p. 84). That of itself would be enough to dispose of the story that H existed in 1876. He says that he was a constant observer of the talking machines, and that he and Drawbaugh were very inti- mate and often talked about the matter (1). 84). His story is, that he listened through F and B; never had any knowledge of any use of C and I, and never took part in any use of any other instrument THOSE WHO SAY THEY HEARD IN 1878. 409 during all the years that he frequented the shop. HF and B when— ever used behaved as the New York tests show they must have be- haved. this is comprehensible, but not otherwise. He is a witness who disproves the date alleged for A. On cross— examination, he said that he saw A in the part of the shop where Drawbaugh manufactured the electric clock, though he never saw A used ; and it might be four or five years ago; it might. be longer; it might not be that long (p. 90). Now there was nothing that could be called a manufacturing of electric clocks even by Drawbaugh himself until the summer of 1877; and it was not until 1878 that partitions were put up to make a room for their manufacture. This constant frequenter of the shop, therefore, proved that A, alleged to be the‘ first finished instrument, did not exist before 1877 or 1878. No. 49. E.” R. Holsinger, defts, i, 377 ; compltis, ii, 1210; app. 103.—This witness, who was a printer by trade, and at times a small country newspaperpublisher, says that he lived at Eberly’s Mills from Sept. 7, 1873, until Nov. 27, 1876; that he has never been there since. \Vhether his story (true or not) belongs to a period be- fore or after Mr. Bell’s patent (March 7, 1866) is therefore a ques- tion of memory. He pretends to have been one of the three or four persons who allege that they actually did some experimenting with Drawbaugh; he says that he saw the instruments at least fifty times, and that he was much interested in them, going to the shop at night to assist Drawbangh about them. He ought to give a deposition stronger and more impressive than any in the defendants’ record; it purports to be so until we get at the other facts he did not tell. His story is that Drawbaugh was devoted to the talking machine and nothing else (1). 378) :— "Q. 45. From all you saw of Mr. Drawbaugh’s operations and ‘ employment during the time that you lived at Eberly’s Mills, what was theexperimcnting on principally? “A. The talking machine; he appeared to be crazy on it; I often tried to get information from him 011 other subjects, and about a half minute’s talk Would turn him right on the talking machine; that is about his standing, ——- the way he felt all the time I was there. 410 E. R. HOLSINGER. —1873~1876. "Q. 46. State whether he said anything to you, at any time while you lived there, about liking to talk with you on the subject of the talking machine, and why, "A. He did ; shortly after I came there I made mention of :1 Cer— tain machine which was considered by people who think themselves sharp an iml‘)ossibility; he said to me that my mind run very much in the same direction that his did, and that I was the only person he came across to whom he felt free to express some of his private ideas.” "X Q. 108. “Thile you lived at Eberly’s Mills, was not Draw- baugh capable of earning all he needed, if he would only work steadily "f "A. Yes, sir; he did work steadily, intently; never lost one moment; but, influenced by some supernatural or other power, did not happen to work at such things as did or would bring him the required necessities for the sustenance of himself and family. “A7 Q. 109. What things did he Work at? “A. He put a great deal of his time in experimenting on his talking machine; in fact, so near all his time that he got very little earned. "X Q. 110. \"Yhat other inventions was he working on during the three years and a quarter that you lived at Eherly’s Mills? "A. I do not remember of anything that he was working on, ex— cept a magneto—electric machine; but whether he worked on that as an invention while I was there, or only completing a former inven- tion, I do not know; that is about the substance of what I know about his inventions.” If these statements are true, here is an instance of devotion to the talking machine, and to that alone, which could hardly be surpassed ; and the talking machine, with perhaps a little attention to a mag- neto—electric machine, is all that this witness knew about his inven- tions in the nearly four years that he lived there. This is not true; for it was during the period 01‘ this witness’s intimacy that Draw- baugh made nearly all of the contrivances enumerated on pp. 321, 61 3539., supra. Then the witness goes on and swears to what, if true, is enough to prove a highly successful talking machine. He says (p. 378) : ~— “Q. 22. Please look at the machines now shown you, marked ‘B,’ ‘F,’ ‘I,’ ‘A,’ ‘D,’ ‘ <1,’ and state whether you saw them, or any of them, while you lived at Eberly’s Mills. “ A. These are all plain to me, that 1 saw all of them; helped Dante experiment on them. ia. R. HOLSINGER.—1873~1876. 411 "Q. 23. that were the first ones that you saw there? "A. The tumbler without a bottom and a wooden bowl 011 top, and the tin can (the witness points to machines F and B) ; next that I saw there was this one (taking up A) ; I saw him make this one; these two (taking up D and E) came next.” "Q. 26. Did you and Mr. Drawbaugh ever operate the machines B and F ?_ “A. \Ve did.” "Q. 27. What did you do with them? “A. We connected them with wires through partitions and floors ; spoke into the one, listened at the other; we had them through the partition, and again through two floors into the basement. "Q. 28. When you listened at the one and Mr. Drawbaugh talked into the other, did you hear and understand distinctly what he said through the machines? "A. Yes, sir, very distinctly; could tell talking and music apart. " Q. 29. Could you hear and understand the words that were spoken when he talked into the machine? "1. Yes, sir; we would use such words which have similar sounds, knowing them to be more hard to understand than those having more contrast in sound.” " Q. 53. In any of your experiments with Mr. Drawhaugh at his shop, did one of you whisper through the machines, or make other noises than talking and singing, to see how they would convey such sounds ‘3' "A. We did; we whispered; we scratched on pieces of wood With pieces of old file; we rubbed paper together between our fingers and then would ask one another whether one could tell what the other one done, or how the noise was made; we asked this through the machines and otherwise; we would hold the paper, or whatever we used, by which the noise was made, to the mouthpiece of the machine.” Thus, according to his story, B and F were so perfect that they were not contented with testing them by ordinary language, but picked out the most difficult noises which articulation and other sources of sound could afford, to test them. Now we know this is entirely untrue, for it is barely one word out of fifty, and, in the condition described by the most favorable witnesses, probably not one word out of a hundred, that could be got through with these instruments, even if we rely on Drawbaugh’s statements to supply the operative parts which are now missind. This is the absolute fact, against which this man’s pretended recollection vanishes into nothing but imagination. 412 E. R. HOLSINGER.'——1873—IS7G. Then the witness says that he saw Drawbaugh making the machine A, and that they tried that, and says of it (p. 379) z—- ‘i Q. 31. How well did that operate? . “A. Somewhat better than the first experiment in which I had acted a part.” Then passing 011 to the next instrument in the defendants’ chrono- logical schedule, he testified (p. 379) 2-— " Q 32. Did you see him make the machines D and E? "A. I did. “ Q. 33. Did you talk with him through those tw0 machines while you lived there? "A. Yes, sir. " Q. 34. To the best of your recollection, about what time was it when you and Mr. Drawhaugh first experimented with those two machines D and E? — “A. About the middle of the summer of 1875. " Q. 35. Did you and he, after you first saw those two machines D and E, experiment with them a good deal, or not much? " A. Very frequently. - “ Q. 36. Did you hear and understand distinctly what was said through those machines? " A. We did; we could speak through this one (holding up D) and hear what the other one said with it also; and the same with E.” P. 384. " Q. 63. During the process of the experiments which you and Mr. Drawhaugh made with talking machines while you lived at Eberly’s Mills, was anything said about patenting the inven— tion; if so, what? "A. There was; I asked him whether he was getting a patent on it; he said he would as soon as he would be able, —that is, as soon as he could get the money to pay for it. " Q. 64. Do you recollect whether anything was said between you and him at the time you lived at Eberly’s Mills about his mak— ing etlnorts to get others to go in with him to furnish the money in order to take out a patent on his talking machine? If anything was said about it, what was it? "A. I remember of him several times telling me that, if he could get parties who he could trust, he would give them a fair interest in it; hut he said that those who had the money did not appear to see that the invention would amount to anything, and he still thought that he would add other improvements to it, which would be neces— sary to make it complete; and if he got a patent on it in the way it was, it would cost extra to add the improvements, and for that reason he did not make any extra efforts to get the money.” The substance of this witness’s story is that he was one of the E. R. HOLSINGER.—1873—187G. 413 three or four incn in the world Who pretend to have assisted Draw- baugh in experimenting; that Drawbaugh’s whole heart and soul were in these instruments; and that the witness knew that he do— Voted pretty much all his time to these, and did not know anything else that he thought of. According to the witness’s story, it was the invention of D 'mvbangh which was uppermost in his mind. Now we begin with the fact that his whole testimony about the results obtained from F and B is false. But that, perhaps, is not the most striking part of it. “7e tind afterwards, first, as to Draw- baugh's finances, ——When the Witness wanted to buy some new type, Drawbaugh lent him $5.00 for the purpose and took out his pay in printing; and at another time Drawbaugh advanced him his note for $10, which Holsinger got his landlord, Leonard, to t‘llie as cash. Among the things which this witness printed in June, 1874, was a little advertising sheet, Which contained the following: " The follow— ing business houses have favored this office with an order for bill- heads, envelopes, labels, statements, circulars, etc.” Then follows a list of names, with the occupations of the several parties. The last one of these is as folloWs: “ Daniel Drawbaugh, Ebcrly’s Mills, Pa., Inventor, Designer and Solicitor of Patents.” After this, and before November, 1876, the witness printed some advertisement cards for Drawbaugh, being the same that have already been referred to, one side of which described Drawbaugh as an “ inventor, designer and solicitor of patents,” and the other gave a list of .mehang/h’s inventions, written by him and printed by this witness. It contains about seventeen inventions, and does not mention the telephone. When Drawbaugh had a speaking telephone, When- ever it Was, he asserts and the defendants assert for him that he believed it was by far the greatest invention ever made, and his great desire was to freely communicate it to the public; it was the great thought of his life. After we put this card in evidence— recalling lIolsinger for the purpose ——the defence put two hundred and fifty witnesses on the stand, but mebnugh did not come or— ward again to emplm'n how this could he. The Court knows that if a practically operative speaking telephone existed among his inven- tions it would have appeared in that list. That is not all. Holsinger wrote occasionally for the county 414 E. B. HOLSINGER. — 1873—1876. papers, and in the fall of 1875, right in the midst of these alleged absorbingr experiments with the alleged perfected telephone, he wrote three articles for the Carlisle Mirror. The first contains general news and gossip about Eberly’s Mills, but nothing about Drawbaugh or about the telephone; the second contains gossip from Eberly’s Mills, with a paragraph about Harmon or ” Shorty” Drawbaugh, but nothing about the telephone; the next, Nov. 16, 1875, contains gossip about Eberly’s Mills, and says : —— “ ELECTRIC CLOCK WITHOUT A BATTERY is being gotten up in our town by Daniel Drawbaugh, to be exhibited at the Centennial next Fourth; it will be one of the thing not dreamt of by eVery one, and be a credit to the nation for its wonderful simple workings and great convenience.” And then some more local gossip, with a paragraph about Mr. H. K. Drawbaugh, but nothing about the telephone. This man has sworn that the one thing which absorbed Drawbaugh at that time was a talking machine, and that he did not know of his working on any— thing else unless it might be a magneto key. He SWears to one thing now; he wrote another story then. He thinks now that all the work was on telephone; he must have known then of all the work on the things enumerated on p. 312, supra. In the summer of 1876 Mr. Bell appeared. Drawbangh says that he knew of it, and llolsinger, his friend, a newspaper man, of course knew of it also. At least eight years before (if their story be true), Drawbangh had done as much as Bell. At that time (if their story be true) he had microphones as admirable as those which the next four years of invention by hundreds of men gave to the world. Hu— man nature an inventor with a newspaper man as his eo-experi- menter and friend -- would not remain silent under that. In October, 1876, Holsinger wrote to the same eounty paper the news from Eberly’s Mills. All that he had to announce to the world was about a sick cow and a disordered hog. See this p. 203, supra. .l’eople took Mr. Bell’s telephones at once; but no one wanted any— thing that Drawbaugh had, nor learned anything from what he (lid. The defendants allege that the effect ofthe conception bu Mr. Bell was that he rushed to the Patent Office before he had well reduced the invention to practice. Drawbaugh waited (so they say) fifteen years. THOSE WHO SAY THEY HEARD IN 1873. 415 This card, these publications, and this conduct are ultimate, pos- itive facts. It is the contemporaneous print and the subsequent history against the recollection of an imaginative friend. Holsinger is a witness fatal to their whole record; he is a sample which, tested by contemporaneous print, shows the rottenness of the whole. These facts about Mr. Holsinger and the card and the publications are more fully spread out in the abstract of his two depositions (app. p. 103). The publications and cards are in complts, ii, 1212, 1218 and pp. 199—201, supra. No. 70. Dr. John W. Mofiitl, defts, i, 516; app. 143.—Den- tist, Harrisburg. Beginning about 1867 or earlier, he has made a few inventions, purchased several and patented all, though they Were upon small matters. He is a man of intelligence and appar— ently of good education; he has known the claimant twenty-five years; he became his partner in a. faucet invention in 1878; he Was a frequenter at Drawbangh’s shop from a time before 1870, and says that what led him there was trout fishing in the run, and “ the inter- est I took in the various and numerous inventions that Daniel Draw— baugh was experimenting on ” (ans. 4, p. 516). "Q. 46. Please look at your fourth answer and, tell me what are the inventions there referred to. “A. Various inventions; I could not state which ones; I was interested in almost any mechanical pursuit the man was working at, being inclined that way myself, to some extent.” He says that he saw a talking machine first in 1873, and from then until now, and that, either at the first time, or not over a month afterwards, he listened and heard what was said. Drawbangh “ handed me an instrument similar to A, which he directed me to place to my ear,” and "I was surprised, and looked around expect— ing to find Mr. Drawbaugh behind me, but did not find him." His testimony is : —— " Q 13. Do you remember whether Mr. Drawhangh talked through the instruments at that time? “A. I can’t gjve anv definite time when he talked through any of these instruments, Whether it was the first time or a short time after; the first time that he talked through them to me was shortly after I had any knowledge of his having a talking machine, when he handed me an instrument similar to this (indicating A), which he 416 DR. MOFFITT. directed me to place to my ear, stating that he Would go down-stairs or in some other part of the building, and that I should listen. He Went, and I heard Mr. Drawbaugh’s Voice asking me if I heard him talk; ‘Do you hear me talk?’ was the way he put it. I was sur- prised, and looked around, expecting to find Mr. Drawbaugh behind me; but did not find him. He came presently, and attempted to explain to me the principle on which the machine operated; Idid not understand his explanation. He alluded to the vibration of a bee’s wing to illustrate how the diaphragm operated to produce the sound ; that is about all that I remember distinctly on that occasion. There was a great deal more said that I do not remember.” He says that he often saw instruments afterwards, but never tried to talk again. That begins to be surprising, if the instrument did talk, as he says, but not if it behaved as in the New York tests. Next, when answering about all the instruments, he says, "I can- not give any definite date as regards any of them except the first three (A, B, C), and that is not very definite.” One begins to doubt about trusting a. memory which he does not trust himself. He pretends to no means for fixing any date. He says that he listened at A in 1873. It is not pretended that A existed before the last half of 1874 (v. p. 142, supra) ; witnesses like Bayler, p. 401, supra, and Brooks, p. 422, infra, and Mtisser, p. 424, infra, if taken only for what they are ()fiei'ed, prove that it did not exist in 1873. Certainly we cannot trust Dr. Moffitt’s dates. Such results as he states cannot be obtained with A when connected with any transmitter alleged to exist before the date of the Bell patent. \Ve cannot trust his allegations of fact. Naturally not, for he says (ans. 16, p. 518) :— “I cannot state positively the time [I saw D], because I took so little interest in the machine that I only gave it a pas+ing notice; I should have said, instead of the machine, the whole talking-machine business, — [took very little interest in it.” A talking machine that talked well never could have produced that etl'ect on a comparatively intelligent man, interested in inventions, attracted to Drawbangh’s shop by " the interest he took in the nu- merous and varied inVentions that Daniel Drawbaugh was making and experimenting on.” The Court is asked to believe (but will not) that practical speak- THOSE WHO SAY THEY HEARD IN 1873. 417 ing telephones existed at Drawbangh’s, and were known all over the county for six or seven years before this old friend and frequenter of the shop heard of it. But it is not only that part of the story that he disproves. In the late fall of 1878 he and Chellis, one of the principal de— fendants here, and one of the three men who invented this “ prior inventor” and sold him to the other defendants, became partners of Drawbaugh in an unpatented improvement in molasses faucets; but not without considering the telephone; their discussion led them to select the faucet because they concluded (ans. 30, p. 520) —- “ that the telephone was already in use, and that Dan would have a hard time to establish his claim on it, and that there would be more money in the faucet than in the telephone business. His meaning was, that Drawbaugh would have to establish priority of invention,” etc. Or, as Chellis, having learned all that Dr. Moflitt knew, shortly afterwards expressed himself to Drawhaugh (defts, i, 548, ans. 13) :— ‘ “I advised him to drop it (the telephone), as he could not antedate Bell.” This was apparently discussed and asserted to Drawbaugh more than once, but met one invariable reply. Chellis says (p. 548) : —— "Q. 13. During any of your early conversation with Mr. Draws baugh on the subject, did you say anything to him about Bell’s patent and claim of priority over all others? “A. Yes, sir; and I advised him to drop it — the telephone— as he could not antedate Bell. He said he did not know about that; that he had been Working on it a good while; it was his way of expressing himself, when I would say you can’t antedate Bell, he would say, ‘I don’t know about that, I have been working at it a good while.’ ” Here was Dr. Mofliit, himself an inventor and patentee, all old friend of Drawbaugh, one who had frequented his shop for ten years especially to see his inventions, " almost any mechanical pur- suit the man was working at, being inclined that way myself,” necessarily knowing all there was to be known ab out them; and he and this active defendant, when the time was fresh, conclude that Drawbaugh cannot antedate Bell. They mention this to Draw- baugh, and his stereotyped reply is, — 418 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. " WELL, I DON’T KNOW, I have been WORKING AT IT a good while.” Drawbaugh himself has made the meaning of that plain. In 1876, under circumstances that would have drawn the assertion lrom a broom- stick, especially in his intercourse with Holsinger and Shapley, he made no claim. In 1878 he said that he knew that he had not done enough to antedate Bell. In 1879 he has brought himself to that self-induced delusivc ignorance which in this class of cases marks the passage from a knowledge of the truth to the assertion of a falsehood, and he “don’t know.” In 1880 he is produced as the man who knows, and about whom the facts are so notorious as to leave no room for doubt. To trust to Dr. Moffitt now is of course out of the ~question. To believe the story is equally impossible. The Court is asked by these men to hear an appeal from their own decision, and to reverse the judgment which, six years ago, both of them formed, when Dr. Moflitt, an old friend of Drawbaugh and con- stant frequenter of his shop, had fresh memory of all that was done in the years before our patent. No. 85. Jere [fa/1767', defts, i, 569; app. 168.-—Miller; says that he lived in Milltown from April, 1873, to April, 1874, and that in 1873 he saw B, C, A, F in Drawhaugh’s shop. Says that he talked through a talking machine from the second floor to the lower floor, and heard and understood what was said. but does not remem— ber what machine it was with. No couple made up from these four instruments can yield the results stated. He has been at the shop [somewhat since he left Milltown, and has seen these instruments; has seen talking machines every time he was there. He swears that A, B, C and F are in the same condi- tion that they were in when he first saw them. 3, F and C are now mere wrecks. _ The date alleged by the defendants for A is after this witness moved away, and 'Bayler (p. 401, supra), Brooks (1). 422, infra), H. B. Mnsser (p. 424, infra), by their testimony to actual use of F and B, prove that it did not exist while this witness lived in Milltown (v. p. 142, supra). THOSE WHO SAY THEY HEARD IN 1873. 419 N0. 261. W. J. Maglaug/zlz'n, defts, iii, surbtl, 750; app. 137. —E. B. Hoffman, a witness for the defendants (q. v. p. 389, supra), said, among other things, that he went to Drawbaugh’s shop on the occasion ofa certain freshet, in August, 1873, and there saw what Drawbaugh told him was a talking machine; that he had previously seen one; that he did not talk throng/z any at that time, but did a year later. He did not intimate that any one was present with him. His testimony being attacked as that of a romancer, the defendants produced a loafing fisherman, W. J. Maglaughlin, with a son twenty- t'our years old, but so illiterate that he cannot write his own name. They swear that they were present at this fishing excursion with Hotfman; that they Went to Drawbaugh’s shop. The description of what they say took place implies that a talking machine was then new to Hoffman, whereas he swore that he had heard through E two years before; and they say at this visit Hoffman and one of the Mag- laughlins listened at I. These two Maglanghlins were brought for- ward in surrebuttal, at the eleventh hour, and at the close of the case. One cannot read their depositions without seeing that they are brought to supply a want and have overdone it. To support Hoffman, they swear they saw him do what he, testifying for the de‘ fence, swore he never did himself. But they testified two years later. No. 140. W. H. Zeam’ng, defts, iii, surbtl, 125; app. 626.— An eleventh-hour witness, called in the third year of the case, though always a neighbor, says that Nov. 25, 1873, he heard speech through 1. He fixes his date merely by an arbitrary connection of ideas, except that he says that he then went to get some steelyards repaired, and what he heard through the machine was "the steelyards are finished,” and he has a memorandum in his book of the time when he paid for the steelyards. This would be very well as to date it" he heard that sentence, but he dill not. His testimony is that he was " standing” " close to the table,” and that the receiving instrument was lying on the middle of the table, and that at such a. distance as that position implies he heard the words spoken through it. This is a physical impossibility, and nothing more need be said about his deposition. His exact testimony is :— “X Q. 63. Vthreabouts in the room were you standing when you heard Daniel Drawbaugh say, ‘ The steelyards are finished?’ 420 BRIEF FOR COMPLAINANTS ON FINAL HEARING. “ A. I was near the table. “ X Q. 64. How near, about? "A. I was quite close. I was sitting about as close to the table as I could sit. “ Y Q 65. Are we to understand now, then, that you were sit- ting, and not standing? “A. I was sitting when D miel D1awb1u0'h went out; afterwards I stood. “XQ. 66. My question 1efe1s to the time when you heard the w01ds, ‘ The steely 11ds are finished.’ Will you please answer it with that understanding? "A. It my memmy serves me right, I was standing at the time. "XQ. 67. And where? "A. Beside the table. "X Q. 68. About how near? “A. I was quite close. " X Q. 69. \Vere the words which you have given in your examination in-chief the first words which you heard through the machine, as you suppmed. ‘9 "A. If I lemember 1ight, I think he had a date,—that is, the month, and day, and year. "X Q. 70. I undelstand you to say that while this was going 011 and you heaid these words, the machine was lying nea1 the mid lle of a table 111 the room which you have spoken of , is that correct? “A. It is, to the best of my recollection.” As to date, he says (p. 128) :— “Q 44. State whether or not you have ever seen Mr. Draw- baugh’s talking machines at his shop since the twenty-fifth day of November, 1873. “A. It is altogether likely I have, as I Was there a number of times after the 25th. "Q. 45. Have you or have you not any distinct recollection of seeing them there since that day? "A. Looking oVer it, if my memory serves me right, I think I was there in May, 1877 ; I was there several years after that, any- how.” Says that he never t‘1lked but once. He says that John Draw— baugh was present at the talking visit, but that he met him there both in 1873 and in 1877. No way therefore to fix his date unless upon the thory that he did hear the alleged remark under the alleged circumstances,— and that is far beyond the limits of physical possi— hility. THOSE WHO SAY THEY HEARD IN 1873. 421 N0. 153. Jesse Eicholtz, defts, iii, surbtl, 152, 160; app. 629. No. 154. Mrs. Eicholtz, defts, iii, surbtl, 158; app. 630. Eicholtz was formerly a miller, about seven miles from Draw- baugh’s. Does not state when he began there nor when he left. The joint story first told by the two is, that they went to Drawbaugh’s shop to get a piece of machinery, which, according to their account book, was finished and taken away Nov. 6, 1873. They say that they there talked through atalking machine and understood plainly What was said. Drawbaugh said he would like to get it patented, but had not the means, and asked the witness if he or his partner Eyster would furnish the money. Did not identify any machine, but on cross—examination described it as fastened to the wall. N0 re- ceiver produced as of (my time before Mn Bell’s patent could be so fastened to the wall or correspond with his description. On cross- examination he said that when they first talked the machinery was not running; then Drawbaugh started the wheel and the machinery to satisfy them that they could hear perfectly well in spite of the noise, and they did. Finally it appeared that he had told this story of talking down the noise ofa machine shop to the defendants’ coun- sel before testifying; very prudently they did not put it in : it was too absurd. Then Mrs. Eicholtz testified on cross-examination that her hus- band saw it about 1870 or 1871, and the defendants had to recall the husband. He said that he did go there then for the purpose of seeing a talking machine by Drawbaugh’s invitation, and that while there he understood distinctly the words that were spoken through it. The defendants had not put this in, and presently something ap- peared which accounted for their not doing so; when the Witness was leaving the stand he said (p. 163) :— " As to that first Visit, I would say that that first talking machine was entirely different from the second. The first consisted of a tin can and a glass tumbler. They were connected by a string; if I mistake not, it was a string instead of a wire. The second was connected by wire. That is my recollection; but it has been so long since that I wouldn’t positively swear that it was a string or a Wll‘e, but I think it was a string.” That means a string telephone, the first time, at any rate, and a string telephone could give such results. ' [16 said that he had told 422 BRIEF FOR COMPLAINANTS ON FINAL HEARING. tile defendants of this visit before testifying. See for the string tele- phone fnrther, p. 309, supra. In his direct examination, and in the very answer relied on, he says that at the visit of November, 1873, " John Teahl rode along With me that day from Teahl’s mill, where he was milling at the time.” The fact is that Teahl sold his mill to Etter & Shanklin before March, 1871, and moved away never to return (complts, iii, 2074). The witness also describes the clocks he saw there. He saw more than existed in 1873, and his description would correspond fairly well to the condition of things in that respect in 1877. Do the defendants want the Court to believe this witness or dis- believe him? or do they expect the Court tobelieve what helps them and not what hurts them? And do they expect the Court, upon the deposition of such a man, to believe that the instruments which could hardly transmit an ordinary word in the perfect silence of the New York tests did, under these unskilled persons, yield entirely intel- ligible talk in the noise of a machine shop? No. 2. James Brooks, defts, i, 43; app. 30. —Mechanic; age, sixty-eight. Says that in the winter, 1873-4, he went to Draw- bangh’s shop and listened at B, while “ a small boy” in another part of the shop (Drawbangh’s oldest son was a little more that six years old) talked into F; he understood what was said. Draw- baugh was in the room with the receiver, so that he could not have aided in adjusting F; and the boy must have done it alone if the incident ever took place. The Court knows that all this is impos- sible. He pretends to no earlier knowledge, and the terms in which he says Drawbangh told him the purpose of the alleged apparatus imply that talking machines weie then new to the witness. The defendants attempt to fix the date by a leading, question, which shows their manner of dealing with witnesses. They had him state that he worked at Eherly’s Mill during the winter, 1873—4, and then asked him whether, while working there, he saw at Draw- baugh’s shop two instruments, F and B, which and which alone they thrust before him. He answers, " I saw both of them.” The whole value of his testimony rests purely on a supposed assent to every THOSE WHO SAY THEY HEARD IN 1873. 423 branch of an involved question, the important part of which about date—is not even impliedly referred to by the language of the answer. But he has known Drawbaugh all his life,for an indefinite number of years has lived in the next town, and has been at Drawbaugh’s shop, both before and since, “ frequently.” Confronted with this, he says that he fixes the date because he got his spectacles mended at the same time. He says that he has never seen talking machines since. His memory is a blank as to everything else about the shop during his visits. Afterwards we proved that he worked for the Faucet Company in 1868. 011 its face, therefore, this deposition proves that an old friend of D ’awbaugh, a workman in‘ the shop in 1868, and a " fre— quent” visitor afterwards, never saw and never knew of any talking machine before 1874, and that in the winter of 1873—4 F and B were the instruments used for exhibition talk, and therefore the best or only instruments. Do the defendants want to keep this 'witness, or do they want to keep the first six or seven years of their story? The Court cannot believe both. Do they want the Court to believe that F and B were the talking instruments in the winter 1873—4, as this man swears, or that they had been superseded several years before, as Draw- baugh swears (see p. 154, supra) ? Their house is too much divided to be a fortress against attack. There is more to be said before we pass from this year, 1873. Since the time when they say the telephone was invented, Drawbaugh had got up a nail machine, and found partners for that whose stand- ing was such that they would have made a telephone known if they had talked through it; but they never did. He had invented the faucet, and his neighbors raised $25,000 on the strength of that, and wanted other inventions of his; but no telephone was otfered them. Eetween twenty—five and thirty men had occupied his shop as part- ners and workmen. Not one of them had ever talked through a. telephone, and only two, or three so much aspretend to any supposed memory even of a private sight of some unfinished parts. 424 BRIEF FOR COMPLAINANTS ON FINAL HEARING. He had the command of a machine shop; he had received seven or eight thousand dollars in cash; just at this time (July, 1873) he received $425 in cash; he had been the owner of real estate during all this period ; he had been the owner of stock in a company, his share of which was worth from $3,000 down to never less than $650. Yet the story which the defendants tell for him and have got to make the Court believe, is, that during all this time he could not, either out of his own resources or the resources of his friends and neighbors, raise as much as $75 to patent this invention, nor so much as a dollar to find materials to duplicate for use the practical operative instruments which they pretend he made. And he was a man who for many years had made his living by makingr inventions, selling them and getting them patented. 1874. No. 44. H. B. fllusser, defts, i, 329; app. 87. —-Farmer of the neighborhood; says that Drawbaugh repaired his mowing machine June 27, 1874, and then talked through F and B, and repaired his mowing machine again in June, 1876, and then talked through D and E, and each time he understood what was said. He says that he did not see any between the two dates named (ans. 20, p. 331) ; never saw A (ans. 28). Has been at the shop since 1876 to have his mowing machine again repaired. The date of these jobs is fixed by his books; the link is supplied by memory, and by a memory which is proved to be deiusive. He described the rooms the instruments F and B were in on his first visit, and crystallized his description into the following, which he drew on the witness stand : — THOSE WHO SAY THEY HEARD IN 1874 425 This arrangement of partitions was the first arrangement which had an entry way between two rooms; it and the first outside stairs were constructed by the Axle Company in 1875; and, as he says he did not see any talking machine between June, 1874, and June, 1876, he must have had F and B exhibited at least as late as 1876,— which will not suit the defence; it is sufficiently inconsistent with their story to have them proved as the exhibition transmitter and exhibition receiver June 27, 1874. Then he described the electric clocks he saw on his alleged 1874 visit, and the clocks described did not exist until 1877. Do the defendants want to keep this deposition or reject it? Do they mean to stand by him or by Drawbaugh, who swears that F and B were superseded long before and as soon as he made C and 1? Does it help the story of incessant work from 1867 that the claimant, in 1874, as Musser says, but in 1876 or later, as it turns out, had not got beyond the instruments (B an.l F) alleged to have been made in 1867? Is this deposition a help or hinderanee to carrying the great burden the defence have got to sustain against our proofs? How much does this encourage the Court to rely on other depositions on their face no fairer than this? i No. 125. W. I]. Decker, defts, ii, 158; app. 251. ——This wit— ness’s deposition must be examined in the fuller analysis of it given in the appendix. His story is that he went to Drawbaugh’s shop in the fall of 1873, and saw B and F/\in August, 1874/ and. D, and heard through it. There is not a pretence that D was made then; the defendants expressly assert that they were not (p. 473, infra); saw A at the same visit; in August, 1875, saw C; in 1877 saw H. He is ludicrously liberal in the supply of instruments. P. 1151. “Q. 66. How many talking machines or instruments do you think you saw there at the time of your second visit; I mean the visit of 1874? "A. They were numerous there; I couldn’t exactly give the number; some were finished and some half 'finished; they were setting round there on benches and on shelves; I suppose if they were all talking machines there were a good many. "Q. 67. Do you know whether they were all talking machines that you have referred to as sitting round on the shelves? "A. No, sir; I don’t know whether they were all talking machines. firm/41" / 426 BRIEF FOR COMI’LAINANTS ON FINAL HEARING. "Q. 68. My question referred only to talking machines. I asked how many talking machines you thought you saw around there at the time of your seCond Visit. “A. I think there were six or seven anyhow, to the best of my knowledge. “Q. 69. Do you think you saw as many as that at the time of your third visit? ' "A. Oh, yes, sir. ”(12.70. Do you think you saw more at the time ofyonr third visit than you did at the time of your second visit ‘2 ”A. Yes, sir; every time I went there there was more than there was before.” Nobody supports this witness. The real facts about Kline, whom he refers to, contradict him (p. 266, supra). Mr. Jacob May, who made a Visit with him, was called by us, and flatly contradicts him. Every date which can be reached and there are many such—- turns out to be wrong. Perhaps as good an illustration as any is found in the statement of what took place at his visit in 1875; he says that he then heard conversation through the machine (1). 115) : — “Q. 33. State what you remember of it. “A. “How is my old friend Jacob May and his family?’ he says; I said, HI‘hcy were all well when 1 last saw them’; he says, rI un- derstand there is an increase in the family’; I told him I wasn’t posi- tive of that, and couldn’t give him no positive answer; he says, ' Well, they are all well as far as you know’; I said, ‘Yes, sir’; he said, ‘I am much obliged.” Mr. Jacob May, called by us, testified (eomplts, ii, 1563) that he had a child in March, 1872, and another in August, 1876, and that there was no occurrence which could have been called an increase of family or an expected incr‘ase between those two dates. We called Mr. \Vilbar, bookkeeper of the nail works where Decker had worked, to prove a date about Decker. The defendants, relying on the unwillingness of men to speak ill of an acquaintance and neighbor, asked him (complts, ii, 1561) :— "IY Q 12. Do you regard him as a reliable, truthful man? “A. I never had a personal reason to think him otherwise, only that he was inclined to talk very freely on matters that we thought were very highly colored.” Highly colored ? — glaring. THOSE WHO SAY THEY HEARD IN 1874. 427 No. 126. Thomas Draper, defts, ii, 11,64; app. 257.——This wit— ness testified that he went to D 'awbaugh’s shop at a date which he says was May, 1874; that he there heard speech through C and I perfectly well, and Drawbaugh asked him to advance him money to patent the instrument. He is the only man of even apparent means, except the falsifier Bayler, to whom Drawbangh is alleged to have talked through an instrument, and asked to furnish money to patent it. His testimony, taken with the fact that it did not. seem to him worth while to touch the business, is no stronger than that of many others. But we know that his visit was in 1877, and if that be so, the fact that in that year, when Mr. Bell’s instruments were in com- mercial use, Drawbangh had got no further than C, and I, which he showed as his best to a man whom he wanted to interest in the mat- ter. is conclusive proof against the defence. That this is the fact is proved by the evidence about the ram. This issue about the ram is so illustrative of what has taken place in this case that we have considered it by itself at the end of the appendix. No. 269. Robert 31001669”, dcfts, iii, surbtl, 815; app. 584.— Miller; an eleventh-hour witness, called in the fourth year, though always in the neighborhood, says that he saw A before Jan. 19, 1875. A is not a telephone, —it is only half a one; and listening at A implies a transmitting instrument. The New York tests show that an apparatus made up of A and the best transmitter pretended to exist at that time could not have transmitted conversation. Drawbaugh says that the tumbler F was what he used with A. This witness, however, 'as merely there with his father; and he says that his father heard, but he does not pretend to have listened himself. That can hardly be considered, if the man was of suffi- cicnt intelligence to be a witness, as anything less than proof that the results which his father actually got were not sufl‘ieient to tempt him to listen. With the indisposition of ignorant men to acknowl— edge that they cannot understand through a telephone, this evidence is merely hearsay. To make it a part of the was gestcc, the remark repeated must have been one that necessarily was true. _ .t 44...“. A pl’w 57—» . “Vere”, ,1 5 1444—; ,4. mung... 428 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. No. 28%. Abraham Dillow, defts, iii, surbtl, 876; app. 595. —— This witness was first called for the complainants, and swore that though constantly in the shop he never saw a talking machine and never heard of one until he heard of it from George Drawbaugh, in February, 1877. He came back upon the stand under the disgrace- ful circumstances which are narrated in the general discussion of the Ditlow family (appendix, pp. 582—603), and swore that he spent a good part of the winter of 1874—5 at the shop, frequently aiding Drawbangh in experimenting on the talking machine, but he does not pretend either to identify or describe any instruments. This particular witness (who lives in Indiana) was kept idling at Harris— burg, under pay by the defendants, for three months before he was put on the stand. The defendants endeavor to support him by having some persons swca' that he told them Drawbaugh had a telephone, and that it was in 1876 that he said this. These witnesses have lived alongside of him ever since 1876, so that their testimony counts for nothing as between 1876 and 1877. i They say that in describing what he saw he said there was a glass tumbler at one end. If be here counts for anything he proves that in the winter of 1874—5 the glass-tumbler instrument F was habitu— ally nsed. The Court knows that so good a workman as Draw- baugh could not have experimented one week with F without making a new one of better workmanship. We believe that it was described to him in February, 1877, and during the same year redescribed to the witnesses amongst whom he lived in 1877, and that F was the instrument he heard of. After testifying for us in January, 1883, he went to Eberly’s Mills, stayed at George \V. Drawbangh’s, and met the whole Drawbaugh family, together with \Villiam Fettrow and Abraham Ditlow and his brother, Joseph Ditlow. Joseph had testified for us, but they got him to come back and say that he had been led to believe that he had heard of telephones earlier, but he then fell into a proved mistake which upset his whole story (p. 375, supra). They spent most of a Sunday together at Dran-‘baugh’s shop. During this whole day’s talk with Daniel and George Drawbaugh, it was not suggested by any of them that the now pretended winter’s experimenting took place. THOSE WHO SAY THEY HEARD IN 1874. 429 Ditlow swears that nothing was said by any of the Drawbaughs which helped his memory, and that this supposed recollection came to him alter he returned to the West, a month later. The story he now tells is inconsistent with George Drawbaugh’s testimony ; and if Daniel bad remembered anything of the kind it would have [Men put f0 Ditlow on his cross-examination, and would have been talked over in that whole day’s talk between Ditlow, George and Daniel. The brother, Joseph Ditlow, called for the defendants, testified about this Sunday schooling at the shop (defts, iii, surbtl, 530) :— " X Q. 89. There was considerable talk during that visit about his case and about Drawbaugh’s talking machine, was there not? "A. Yes, sir. "X Q. 90. Daniel Drawbaugh said that his side would surely win the case, and that he should remembvr his friends, did he not? “ A. I don’t remember that he said that his side would surely win the case, but he said that he would remember his friends.” The dates alleged by these witnesses come down to the time when the work of the Haucks, who occupied Drawbaugh’s shop, ceased to be active, and the Axle Company came in. If these witnesses prove anything they prove practical speaking telephones freely shown everybody at the shop. Now we know absolutely from the Haueks; we know especially from Drawbangh’s statements in D. A. Hauck’s and his own cross-examination in the faucet interference case, that no such thing existed while the Haueks were there. \Ve know it from the numerous other eontrivances he then wasted his time on. lVe know it from the electricians, Keifer and Wilson, to whom he showed those contrivanees, but no telephone. We know it also from the advertising card he published during this period enume- ‘ating the inventions he gloried in, but containing no telephone. In the expressive language of the Court in the cotton-gin case, these pieces of evidence " outweigh a host of witnesses.” 1875. No. 9. Ui'z'ccs R. ,ZVic/zols, defts, i, 94; app. 27. —This witness says that he went to Drawbaugh’s shop only once in his life; that he then listened to A_ and heard and understood what was said and saw B and F; that Drawbaugh told him that A had been made about sixty days, and that he had had B and F about three to four 430 URIAS R. NICHOLS. years. He states that this Visit was in January, 1875. Daniel Wesley Smith, the witness who preceded him, had just testified that he was at Drawbaugh’s shop in November, 1874, and saw Drawbaugh making A. Thus the statement of the one witness, that he saw Drawbaugh making A in November, and of the next that he saw it in use in January and was then told it was about sixty days old, fit the proposed chronological table. Nichols says that there were two lines from the upper story to the cellar, both equipped with instruments, and that perfectly intelligible talk was carried on with both. This is the only intimation in the record of such an arrangement, and the New York tests show that such results as he asserts could not be attained with any two pairs of instruments alleged to exist in January, 1875, before D and E Were made. D and E were not among the instruments he says he saw. The operator who managed, adjusted and spoke into the instru» ment at the other end was a boy who addressed Drawbaugh as " father.” Drawbaugh’s oldest son was then seven and a half years old in January, 1875. The only transmitter alleged to have existed at that time, and capable of any use with A, is the tumbler F. Nichols says that Drawbaugh was at the receiver with him. So the sew>n~year~old boy was to adjust and get perfect speech through that instrument which cannot talk at all. No further comment is needed on that. The witness disposed of himself (and the story) on the matter of date. On direct examination he said that he fixed it by the Fact that he bought lime that day at Hake’s lime kiln (not far from Milltown), and that a tnemorandum at home showed that thelime was delivered in January, 1875. The alleged memorandum has never been pro- dueed. Henry Kintz was Hake’s lime burner for many years up to April, 1876, and sold all the lime; We proved by him and by Hake’s books which Kintz kept, that he never sold any lime to or for Nichols. On cross-examination Nichols said that he went to the shop at this, his only visit, to see Drawbaugh’s electric clock, in consequence of having read in a Harrisburg neWspaper, of "two or three months ” before, an " account of a clock invented by Drawbaugh that was run THOSE WHO SAY THEY HEARD IN 1875. 431 by electricity and required no winding” (ans. 61-67, defts, i, 99). No such account was in the Harrisburg or any other paper until Jan— nary, 1878, and no allusion of any kind to his clock in any paper before November, 1875, and then only five lines in a county paper twenty—five lniles away. Nichols says that he was in the habit of reading the Harrisburg papers (ans 65, 82). He stated that during the same season he mentioned what he had seen to Col. Levi Maish, a lawyer, of York. Col. Maish, who has served two terms in Congress within the last ten years, says that Nichols did tell him that he had seen a telephone and an electric clock at Drawhangh’s, but that he. Col. Maish, had previously talked through a Bell telephone in Washington with Mr. Robeson and Mr. Blaine, from the electrician’s office to Mr. Painter’s rooms; that was in the fall of 1877. To this the defendants have made no reply. Niehols’s date is now certain enough; but what will the defendants do with the sworn statement of their witness that A, the first finished instrument Drawbaugh ever made, was only sixty days old in 1878? How much of their load can this witness carry, or does he add to it? With how much implicit confidence in the defendants" record and in Drawbaugh, who helped them get together this record, does he inspire the Court? All the testimony about him is collected and fully quoted in the appendix, pp. 27, 475—7. No. 31. J. H. Reneker, defts, i, 244; app. 72. ——Farmer; has lived three eighths of a mile from Drawbangh ever since March, 1875. Says that a couple of months after he moved there Draw- baugh repaired his clock. B, F, C and A are shown him; sure he saw B and F; thinks he saw A and listened at it, and heard song and speech "quite plain”; does not know what transmitter was used. A is a non-polaiized instrument- and requires a battery. Drawbaugh says that he used the broken tumbler F with it. No apparatus made up of A and F or any transmitter then known to exist can give such result. But D or E are much better receivers than A, and the two to— gether form a much better apparatus than any of which A could have formed apart; moreover they do not require the trouble of a. 432 BRIEF FOR COMPLAINANTS ON FINAL HEARING. battery, which A does. A would not have been used if D or E ex- isted. The defendants did not even ask him if he saw D or E, whlch is conclusive proof that they know he did not. He proves, therefore, that D and E did not exist in May or June, 1875. The importance of this is enhanced by the fact that only four days before Reneker was called Springer had given decisive testimony against D and E, and the defence had great nted of a witness in favor of them. He has lived near ever since, and in 1877 was frequently at the shop and saw talking machines; the date stated rests upon memory. He is the witness who helped .0 tell the pitiful story —-and shallow falsehood— about Drawhaugh selling him a. secrelary for food (q. V. p. 352, supra). , N0. 120. 0. E. bjodegmfl, defts, ii, 1125; app. 247. —-This witness says that he made several visits to the shop in 1874 and 187.) and heard through an instrument, which he cannot identify, in May, 1875. There was an attempt to support him by one Updegrove and one J. H. Smith. The time of this witness is pushed over at least a year. In giving i an account of his visit on direct examination, Updegrafi" testified that he and others went a fishing on Yellowbreeches Creek, and in de— scribing their expedition on direct examination, he says (p. 1120) :— " We went to Zacharias’s mill; that, I judge, was three or four, or may be five, miles above this nnll where Drawbaugh was. We camped there the first night. The next day . . . we put our boat in the liver and went down to Ebcrly’s Mills . . . we pitched our tent on a little island at Eberly’s Mills 1n the creek and fished there till morning. ” And in the evening went into the shop and talked through the talking machine. He then continues as to Zacharias’s mill : — "I only know that Zacharias was the man who run the mill or at- tended it; 1 do not know whether it was his null or not, but 1 think he was only the miller there.” Zacharias, who was one of the defendants’ witnesses, testified that he did not go to that mill until April, 1876. See Zacharias’s own deposition, quoted in appendix, pp. 24, 249. His compatriot], J. H. Smith, testifying to the next fishing excur- sion and visit to the shop during the same month, alleged to be May, THOSE WHO SAY THEY HEARD IN 1875. 433 1875, says that they went to the grocery store of the village and made some purchases. The store was blown up, January, 1875, and not rebuilt till the very end of 1875, and there was no store in the interim. Updegrafi' alleged that his date was fixed by an entry in his book; it appeared that the defendants’ counsel had examined it on half a dozen ditferent occasions, and they did not produce it; the witness forgot to bring it. All this is set forth at length in the appendix, pp. 247—250. No. 166. Orlando B. {fa/may, defts, iii, surbtl, 224; app. 603- 616. — He is another Witnesswho first testified for the complainants (complts, ii, 990) that he never saw any telephone there until a time which was fixed by his direct and cross-examination as 1877. He was called for the defendants in surrehuttal, and testified that he talked through an instrument, not identifying it, but partially de- scribing it, in August, 1875. They produced an acquaintance of his, Basehore (defts, iii, snrbtl, 116), to support him, but unfortunately the description which Basehore gave was that the line he talked over ran from Drawbaugh’s shop up to or towards his house. Now 110 such line is pretended to have existed before the end of 1877. Drawbangh elaborately described all the circuits he used, and no such line is among them. For Baseliore see app. 612. Basehore says that Kahney spoke of it as if he had seen it before. Kahney and Basehore then lived and for several years had lived with Wilson P. \anters, defendants’ witness. Walters and his wife testify that neither Kahney nor Basehore spoke of talking machines, and that they never heard of them till lately (app. 613). Kahney by his conduct has destroyed his character and the value of his deposition. After testifying for the complainants at Phila- delphia he went to Drawbaugh’s neighborhood and visited his house and shop; stayed there some time; he then went West, and after getting to the West wrote home to Drawbangh that he remembered seeing a talking machine there in 1875. He was introduced by the ., defendants with somewhat of a flourish of trumpets as follows (p. 230) : —- “Q. 49. And you wrote to Mr. Drawbaugh informing him of it, that no injustice might be done by the mistake which you say that 434 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. you had made at Philadelphia [when testifying for the com- plainants]: is that the way of it ‘7 “A. Yes, sir.” A nice sense of justice and injustice. After writing to the de- fendants that he could testify for them, he then wrote to the com- plainants that the defendants wanted him to come back and testify, and that he had seen a telephone there in 1873, two years further back than he wrote to the defendants, and saying, “Icon keep out of their way ifyou say so; don’t fail to write and give me advice.” On getting, of course, no answer to this impudent request for a bribe, he wrote again, “ to ask an advice of you whether I had better or not go and testify on the other side,” to which repeated proposition to sell himself he got no answer either. Then he came East (he lives in Illinois) and testified for the defence. N0. 161. Eli Grayhtll, defts, iii, snrbtl, 184; app. 638.—Age, sixty-nine years; day laborer; formerly apartner in the firm of Zach- arias& 00., and had charge of the warehouse at White Hill Station, which his firm hired from Jackson Free. An eleventh—hour witness. Not the slightest honest reason for not calling him before. He has lived for many years, and now lives, close to White Hill Station, used by the inhabitants of Milltown, and a mile from Drawbaugh’s shop. At a date which he thinks was in the forepart of the sum— mer of 1875, Drawbaugh was at the station one day. In answer to leading questions, he says that Drawbaugh then asked him to put some money into a talking—machine invention, and said that if he had $150 he could get it patented. ‘Gruybill says that he thought of investing the money, and put his hand into his pocket to draw it out, and then concluded that he would not, and did not do it. He can- not identify any instrument; he says that " A looks most like it,” but that, according to his recollection, “ the instrument was more square.” Nothing anywhere approaching a square form has been produced alleged to have existed in the summer of 1875. That this witness at once should have been ready to put his hand in his pocket and draw out the money to patent it with, when he had never seen it before, never tried to talk with it, and, so far as can THosE WHO SAY THEY HEARD IN‘I869. 435 be learned from his deposition, never heard of it up to that time, is absurd. After this, and he thinks still during the year 1875, he says that he was at Drawbaugh's shop and Drawbaugh talked through a ma— chine to him and whistled through it, and he heard and understood what was said. All this was in answer to leading questions which constituted a series of propositions, and merely asked his assent to them. He says that he thinks the machine he listened at was Screwed up against the wall. No receiver is pretended to have existed at that time which was or could be screwed up against the wall; but a string telephone Would naturally be so arranged in order to strain the strina. Eicholtz listened atone fastened up against the wall. Cowens listened at one fastened up to the wall, which he described as listening at a hole in the wall ; and Shireman and others have done the same.’ According to this story, he was a man of some‘money at that time, and he came so near investing the money in the alleged telephone the first time he heard of it, without even listening at it, that he put his hand in his pocket to draw out his wallet. This is ludicrously absurd in itself. A man who is going to pay the expense of taking out a patent does not begin by handing the money over to an impecunious inventor at the outset without bargain or arrange- ment ; but let that pass. If there had been any experience of that nature Drawbaugh would have shown him the best instruments he had when he got to the shop, and undertook to talk. According to the defendants’ story, D and, E, the smallest hand instruments Drawbangh ever made, were the best and indeed the only ones Worth touching. Distinctly the man did not listen at these, whenever his visit was, but at something screwed up against the wall. If we take his story, therefore, his evidence disproves the existence of D and E in the fall of 1875. His deposition so far shows that he can be nothing but a romancing falsifier, and the inconsistent and forgetful answers he gives on cross-examination complete the proof on that point (see them in appendix). ‘ His cross—examination showed that he had been at Drawbangh’s shop several times since the suit began, and seen and talked through telephones, but could not tell the same story twice about these recent ~——e-———- --~-«-.——_——-——_u_—-_—" 436 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. visits. Sickness and misfortune have broken him and ruined his memory; he admits that this was his condition a year ago; and proves that it is now by saying, with the fatuity of decrepitude, " I have got over that now,— weathered it through. I can remem- ber everything now as well as ever I could.” He is a day laborer, sixty-nine years old. Among other things, he says in terms that What Drawbaugh showed him was the " telephone, as he called it then” (1). 186, ans. 17). The evidence is explicit that Drawbaugh never used the word ” telephone ” until after Mr. Bell became known (see app. 576). In connection with Graybill’s testimony should be taken the fact that to help him fix his dates the defendants called Jackson Free, ' owner of the warehouse, to testify when it was that Graybill occu— pied the warehouse. Jackson Frec must be a man of means because, besides being a farmer, he owns the Warehouse of the village. He is a man whom Drawbaugh included in the. list of persons for whom he worked (defts, ii, 918, p. 282, supra). He has lived for an indefinite number of years at \Vhite Hill, a mile from Drawbaugh’s shop and the next railroad station, and, of course, he got all the news of the neighborhood. Inasmuch as the defendants have taken great pains to prove the rumor of the existence of a talking machine, and called witnesses from a distance for nothing else, the fact that they did not ask Free any question Whatever about a talking machine must be taken as proof that he never heard of it. No. 141. Jacob Evans, defts, iii, surbtl. 88; app. 562—582. — This witness was first visited by the defendants. and he informed them that he never saw any talking machines at Drawhaugh’s shop, and never knew of any being there, and thereupon they sent him home and did not call him as a witness. He was then called by the complainants, and he testified positively that he never knew of any talking machines at Drawhaugh’s shop before 1877 (complts, ii, 974). Six months after this he again reasserted it in conversa- tion (app. 578). He is now by the defendants brought back on the stand and testifies that he heard speech through some instrument, which he does not pretend to identify, in December, 1875. It Would be interesting to know what it is. He had sworn, when THOSE WHO SAY THEY HEARD IN 1875. 4—37 called for the complainants, that he never saw any of the exhibits produced ; when the defendants called him back and had him change his testimony he swore that he heard talk through a machine, but he did not pretend to identify it or say it was any of those which have been produced. His deposition is considered more fully in connection with those of the other members of his family (app. pp. 562—582), and the mast that can be said of him in favor of the defendants is that he is a Worthless witness for both sides. To support him the defendants called several memhers of his family, who alleged that they were present, but none of them pre- tend to have listened at the machine, which some of them think was D. Their description of the rooms, of the clocks they saw, and of language which they say Drawbaugh used to them at the Visit testified to, show unmistakably a condition of things which did not exist until long afterwards. Thus one of them (Sarah E. Evans, defts, iii, surbtl, 78 x-ans. 35) states in terms that at this visit Drawhaugh called the machines "telephones ”; and the others use the same words The testimony for the defence (app. 577) is explicit that Drawhaugh never used the word “ telephone” until after he had heard of Mr. Bell, and did habitually use it after that. He and the tWo Ditlows, who also testified for the complainants and then returned and con- tradicted themselves under circumstances of great pressure and great improhability, are of the same family. No. 204. John Simmons, defts, iii, snrbtl, 428; app. 569.—E~irly in the case the defendants interviewed Jacob Evans and found that he had never seen or known of telephones early enough to he of any use to them. Afterwards the complainants saw him and called him, and he testified that he first heard of them in 1877. Afterwards the defendants recalled him and undertook to show by him and his family that he had heard through one in their presence on a particular oc- casion, which was Dec. 5, 1875. They did not suggest and the course of his deposition excludes any recollection on the part of him- self or any of his family or of Drawhaugh that he ever saw one be- fore that particular visit. A month later the defendants called John Simmons, who testified that in November, 1875, he went to Draw- 438 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. bangh’s shop with Jacob Evans and talked through A and E. That was on an entirely different occasion from the one spoken of by the Evans family, and in the month before. Clearly the recollection of Jacob Evans and of his family and of Daniel Drawbaugh is directly contrary to this witness’s testimony. Moreover, it is not to be believed that in November, Jacob Evans talked through those instruments, and two weeks later went there again with his wife, his brother and two sisters, and the instruments were again rigged up, and he, who had just tried them once, was the only one of the party who tried them at this visit,—and yet that is the story, if Simmons is to be believed. 011 Simmons’s cross-examination it appeared that during the first two years of this suit, 1880—1—2, he worked for Drawbaugh and Chellis, one of the defendants, in Drawbaugh’s shop, and he and Drawbaugh talked about the suit, as of course they must have done. They did not call him. He testifies that last spring Mr. Comfort, on behalf of the complainants, met him, and he said he knew nothing about a telephone. He now tells a circumstantial story of his alleged visit, and says that he never mentioned to any one that he had made that visit with Jacob Evans until he told it to the defendants’ counsel on the morning of his deposition. This deposition is merely an illustration of the law of supply and demand. The fellow thinks that arecolleetion is wanted, and he offers what he hopes Will pass for one. One can hardly criticise such a deposition in the ordinary way; but it is plain upon the face of it that he has not the slightest reason for fixing any date. He has lived in the county since 1875, and lived in the village of Eberly’s Mills ever since some time in 1876. He attempts some de- scription of what he saw, and, so far as it is intelligible, he describes an arrangement of instruments which never existed; especially that the instrument he listened at was fastened on the end of a stick, and, as well as can be made out, that the receiver was lying on the bench and he was sitting by the side some distance of when he says he heard. 1876'. No. 181. H. L. meme, defts, iii, surbtl, 322; app. 645.— Another eleventh—hour witness called in the fourth year of the case. His story is, that he visited Drawbaugh’s shop at a date which BRIEF FOR COMPLAINANTS ON FINAL HEARING 439 seems to be fairly well fixed as about February or March, 1876; that George Fiedt-rick and Jonathan Fry, two of the defendants’ wit— nesses, were with him; that he, Hamme, heard Drawbaugh talk through a talking machine and understood what he said, but the others took no interest in the matter and paid no attention to it, and they so testified. Hamme does not pretend to identify the machine. He says it "might be” some of those shown him, but he does not say Whether it is or not. His whole description of what was done would be perfectly met by a string telephone. He says he took one instru— ment in his hand and walked through the door into the next room, leaving the door ajar; the two were connected by "it was either a wire or a cord; I don’t know which any more; I couldn’t tell whether it was a wire or a cord; it might be a Wire wrapped with eord ” (ans. 43, p. 328). Plainly one cord is all that is in his mind. Now an electric tele- phone requires two to make a circuit, but a string telephone only one. He does afterwards say that Drawbaugh told him it was done by electricity. With the arrangement described, it would have been impossible for anybody, with even a gOod magneto, except an expert, to know whether he heard anything through the instrument, because the sounds going through the partly open doorway would be much the loudest. But a string telephone under these conditions could be heard. That neither he nor any of the other witnesses with him can pre- tend to identify the instrument deprives his deposition of value, for if he used F and B it does not advance but only injures the defend- ants’ ease. He swears to no more than other witnesses have sworn to with these instruments, although neither he nor they could have obtained such results with them. In this View it is more than sig- nificant that the only instrument which the defendants showed to him in any case, and asked him to identify as the one which he used, is the instrument B; and, although, referring to the others which hap— pened to be on the table, he says he could not tell whether he used any ofthem, the fact that they inquired of him about B and no other shows that in the preliminary examination that was the one which he was inclined to recognize and which they think he used. It does not appear when the defendants first interviewed him on 440 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. the subject, but it does appear that they Visited his co-wituess Fry, a neighbor of Drawbaugh, and took his affidavit before they took their first evidence in chief; it cannot be doubted, therefore, that they saw or knew of Hamme about the same time. That he was not produced until three years afterwards, and in their surrebuttal, is more than suspicious, especially in View of the extraordinary growth of memory in the arse of a number of their witnesses, for example, George A. May, Augustus Kahney, John Simmons, who, in 1881, could remember nothing, but in 1884 undertook to tell a story which, if true, would make them among the best witnesses in the case. The defendants were unwilling that this witness should be cross—examined, and every attempt to test his memory, even under these suspicious circumstances, was prevented by the course of the respondents’ counsel in interposing instructive objections. His companion was Jonathan Fry; he has lived for fifteen years close to Eberly’s Mills; he did not listen at the machine and does not know what, it was. The tenor of his deposition is that he had never heard of a talking machine before this (whenever it was and Whatever the thing then shown was) ; he was not asked about any earlier knowledge, though the defendants called men from twenty miles away to more rumor; plainly they know that this near neigh- bor had never heard of it before 1876. The following witness relates to a period after the Bell patent, but his testimony has a bearing here : — No. 252. David (Iowans, defts, iii, surbtl, 695. —Age, sixty- nine years; Rye township, Perry County; farmer; called princi- pally to testify on the subject of the putting in of an hydraulic ram on the Draper farm, Marysville; testifies also (p. 701) that he vis— ited Drawbaugh’s shop in company with George W. Kissinger, in the spring of 1876, in the forepart of May, he thinks. P. 703, am. 52 :— “ I saw an old big clock that he had there —an old big clock that he was trying to make go Without winding; and saw_ this other machine, this talking machine. I don’t know what he called it, —— this thing that you spoke to, and spoke through. He had that there, too.” THOSE WHO SAY THEY HEARD IN 187G—oownns. 441 He says that he listened and understood. He was not asked to identify the machine or describe it. Why not? Called subsequently for complainants (complts, iii, 2462), Mr. Cowens testified as fOIIOWs (p. 2463) :— "Q. 25. Will you please tell us what this thing at which you listened on that occasion was, as you now recollect it? "A. I didn’t see the machine, I heard it; there were holes through the wall where I listened; Drawbaugh was in the other room ; he talked through it; I don’t know what it was like. "Q. 26. On that occasion did or did not Mr. Drawbaugh explain any talking machine to you, or say anything to you about talk- ing by electricity? " [Same objection] "A. He did not. "Q. 27. After you had given your testimony for the defend— ants last winter, and while you were still in town here, did or did not any of defendants’ counsel show you anything stated to be a talking machine, and ask you Whether or not you had ever seen it before; and if yes, what was your reply? " [Same objection and as i772mateMaZ.] "A. Well, they showed me one—Mr. Jacobs’s—in his office; they called it a talking machine, and asked me if I had ever saw it before; I told them I hadn’t.” What do they mean by their testimony from Cowens? From the witness’s positive statement that he had not run any of the exhibits produced, and their failure to examine about, them on either occasion, from the description he gives, and from the fact that when the de— fendants had him on the stand they did not ask him to describe the instrument he thinks he saw, it is clear that he did not use any instrument produced by the claimant. No receiver which has been produced could have been so fastened to the wall that a person could think he was listening at a hole in the wall. All that are alleged to have existed before that time were to be held in the hand and connected with flexible cords or wires to the line. Several other witnesses speak of listening at an instrument fastened to the wall, e. 9., Eicholtz. Why do not the defendants tell the Court what there was that could give rise to such testimony? Certainly no instrument produced, nor any described by the claim— ant, could have done that; a string telephone could. The claimant can explain this matter if he Wants to, and he would, unless the facts about it would hurt his case. Such is the established presumption 442 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of law. (See pp. 129, 245, supra, and p. 311, supra, about string telephones.) According to the claimant’s story D and E had existed for over a year; if those were in existence no other receiver would have been used. The Witness could not, taking D or E, or even A, in his hand and listening to it, have thought that he was listening to a hole in the wall. These instruments were not to be supported by any wall, except the kind through which Pyramus and Thisbe told their love. If this witness proves anything, therefore, he proves that D and E could not have existed at that time. They had him testify that Drawbaugh said that he expected to ex- hibit at the Centennial -—— a clock. Plainly he had not got D and E then. These witnesses bring the proof for the defence down to the date of Mr. Bell’s patent, March 7, 1876. To them are to be added the witnesses about D and E, presently to be considered. The specific proof will be found to be that there were no practical instruments at the date of the Bell patents. Some special Features in the Defendants’ Proofs. Certain features run through many of the depositions just referred to. Instruments not identified. — A certain number of witnesses do not identify any instrument. What effect do such depositions have? (Jon- sidering how many witnesses assert that they heard speech through F and B, which the Court knows of its own knowledge never yielded any, the oaths of the same class of witnesses that they heard speech through some unknown and unidentified instrument, a result which! they give us no means of testing, is worthless. This is particularly the case where these witnesses allege dates during the period when F and B are sworn by other witnesses to have been in use. A witness who alleges that he talked through a talking machine and paid so little attention to it that he cannot give the slightest descrip~ tion or intimation of what is was, is worthless; and it should be remembered that if Drawbaugh has any recollection of any of the FATAL INFIRMITIES IN THE DEFENDANTS, PROOFS. 443 alleged instances, the witness in his preliminary examination by counsel has the benefit of any suggestions Drawbaugh can make. But there is more to be considered about this matter. David M. Ditlow, p. 313, 397, supra, looked at the exhibits and could not reCognize any of them. He did remember what he talked through, and there was at each end a tin tube with a bladder. One can hardly doubt that this means string telephone. He gives a description of his visit, which leaves very little doubt on the mind that he talked through a string telephone. Coxvens, going there at a time when they say they had D and E and several microphones, gives a descrip- tion of what he listened at, which is met by a string telephone per— fectly well, but which absolutely excludes any instrument produced or referred to even by Drawbaugh. The defendants, by their con- duct with him, show that they knew that whatever it was he listened at, it was nothing that had been produced or described. Why do they not tell the Court what it was? Considering the nature and character of this case and the conduct of the defendants and of Drawbaugh, the Court must adopt the conclusion which the Supreme Court and all other courts have adopted in such cases, that the failure of the (le— fendants to make clear the matter which their own man Drawbaugh must know all about, not only leaves the evidence vague, in- definite, and in doubt, but is a distinct and unequivocal admission that the truth, if told about that instrument, would spoil their case. We know that in the case of Eicholtz they, finding that his recollec- tion was that at one visit he had talked through a string telephone, suppressed all mention of the visit. We know in the case of Epp- ler (p. 311, supra.) that they so skilfully examined him as to make it appear that he had seen talking machines at Drawbaugh’s shop, when the fact was, and they knew the fact to be, that he had seen a string telephone at the shop of Drawbaugh’s brother, and went home and made one like it. If the witnesses who have not identified any instrument are merely thrown out of the case, that destroys the following witnesses : —— A. May, Hoffman, Shireman, D. M. Ditlow, Senseman, Mrs. Free, G. Natcher, Mart-in, Keefauver, Kohler, Eicholtz, Mrs. Eicholtz, A. Ditlow, Updegrafi', O. Kahney, Graybill. 444 BRIEF FOR COMPLAINANTS ON FINAL HEARING. The Court must conclude that the failure to identify any instru— ment or describe any, still more a description by a witness which excludes any instrument produced, but which could be met by a string telephone, is a piece of evidence to be recognized as some— thing which is, and which the defendants know is, adverse to them. The witnesses in that category are so many as to seriously weaken their proofs. Summary of witnesses who allege that they heard and understood through the instruments named hejbre the (late of Mr. Bell’s patent. 1867. 1. Snell, p. 381. B. Impossible. 186.9. 2. Shank, p. 382. F and B. Impossible. 3. Zacharias, p. 383. 1869—74. F and B. Impossible. 4. Freese, p. (384. F and B. Impossible. Scherz'ch, p. 384. F and B. Impossible. In 1874 A and I. Impossible. 6. S. IVz'chols, p. 384. F and B. Impossible. Visit in fact after July, 1876. 7. Millard, p. 385. B and a transmitter on the bank. Impos- sible. A, D and E in 1874—1876. Date not well fixed. 1870. 8. [1. If. Drawhaugh, p. 386. F and B; swears that they did not even attempt to speak in the first part of the year. 9. Geislwez'l, p. 388. F and B. Impossible. 10. Abraham May, p. 388. Unknown instrument. Impossi- ble, if F and B or C and | ; testimony worthless, because no memory of instrument, and it cannot be tested. 11. G. W. Drawbaugh, p. 391. F and B, while painting Sadler’s wagon. Impossible. Says that this was in the spring of 1870; in fact the wagon was painted in the springof 1871. SUMMARY OF ALLEGED LISTENING WITNESSES. 445 1871. 12. Hofl'num, p. 389. An unknown machinein 1871 ; impossible; worthless testimony; and he is proved to be a worthless witness. 1872. 13. I. D. [fa/meg, p. 392. F and B, in 1872. Impossible. Says he understood through A, 1873—4; impossible with any trans- mitter then alleged to exist. D and E in 1875—6. He has no way of fixing any dates. Was at the shop nearly every week for eight years. Is a worthless witness otherwise. 14. Siziremcm, p. 393. An unknown instrument fastened against the wall. No such instrument pretended to have existed. Says that at the same time he also saw A, D, E and | ; no pretence that A, D or E existed until two or three years after the date alleged. No way of fixing the date. 15. J. C’. Smith, p. 394. F and B, 1872—3. Impossible; he was at Drawbaugh’s shop most of the year 1877 and suppressed that fact. 16. H. F. Drawbaugh, p. 395. F and B. ImpOSSible. Thinks through A in 1873 (alleged to have been made in 1874) ; impossible with any transmitter then alleged to exist. 17. David M. Ditlow, p. 397. Two tin cans with bladder over the end, connected, he thinks, by a string or wire covered by a string. These were string telephones. Such is in efi'ect his description. The defendants’ testimony is that Drawbaugh did not have two electrical instruments with tin cans. N0 instruments produced as of that date would give such results as he states. String telephones would. 18. Senseman, p. 398, B. Unknown transmitter. Impossible. 19. 1111's. George Free, 1). 399. Unknown instrument; impossi- ble with any instrument then alleged to exist. 20. G. Natcker, p. 400, ditto. 21. Illartin, p. 400, ditto. 22. [fefauveh p.401, ditto. 1673. 23. J. B. mebaugh, p. 404. Says that he spoke and Daniel listened and understood. Thinks F and B, perhaps M. Worthless memory; at some unknown time afterwards he listened at some 446 BRIEF FOR COMPLAINANTS ON FINAL HEARING. unidentified instrument and understood “ some words, not all.” That was the best the clatnmnt’s brother and newt-door neighbor ever did. 24. Bayler, p. 401. F and B in 1873; impossible. Visit proved to be at least two and probably four years later. 25. M. P. Smyser, p. 407,. F and B ; a small boy adjusted and spoke. Impossible. Never talked again. Fixes date by arbitrary association. Frequent visitor since. 26. IIonz'nger, p. 409. F and B, speech, and sounds made pur— posely more difficult to understand. Ridiculously impossible. D and E in 1875. A witness thoroughly discredited by his own printed statements about Drawbaugh and his inventions. 27. Dr. lilofiitt, p. 415. Ideally perfect speech through A in 1873. Impossible with any transmitter then alleged to exist. Thoroughly discredited by his own course of conduct and subse— quent statements. A alleged to have been made in 1874. 28. Kohler, p. 418. An unidentified instrument. Impossible with any instrument then alleged to exist. 29. W. J. Maglaughlin, p. 419. Says he saw Hofinian hearing at l in 1873; impossible. Hoffman, defendants’ witness, says he did not then do it. 30. Zearz'ng, p. 419. Understood a. sentence through I when he was several feet away; ridiculously impossible. 31. Eicholtz, p. 421. A receiver fastened to the wall when the machinery was all running; no such receiver pretended ; impossible. A string telephone Would have done it. Eieholtz, on a former visit in 187] , certainly saw a string telephone, and the defendants sup- pressed this fact. Memory proved bad. 32. 1117‘s. Eicholtz, p. 421. Ditto as to 1873. 33. Brooks, p. 422. Winter of 1873-4, F and B; impossible. 1874. 34. H. B. Blusser, p. 424, understood through F and B in 1874 and D and E at his next visit, in 1876; impossible about F and B. In fact it was not before summer of 1876 that he listened at F and B. 35. Decker, p. 425. Understood through D in 1874; not alleged to exist until the next year. 36. Draper, p. 427. I in 1874; impossible. His visit really in 1877. SUMMARY OF ALLEGED LISTENING wrrNussns. 447 37. R. McOZeaf, p. 427. Saw his father listen at A in Decem- ber, 1874; did not listen himself. No couple alleged to have then existed would give intelligible speech. Impossible. 38. A. Ditlow, p. 428. An unknown instrument; repeatedly, Winter of 1874—5 ; described it to others as a broken-tumbh r appa- ratus ; speech with it impossible. Had formerly sworn that he never saw or listened. The witness otherwise discredited. I875. 39. U. R. Nichols, p. 429. A in January, 1875; impossible with any transmitter alleged to exist then. His visit proved to have been in 1878. 40. Geo. A. May, p. 474. D and E in the spring, and at the same time saw H. Defendants swear that H did not exist until after the date of the Bell patent. The witness otherwise entirely dis- credited. 41. Fetlrow, p. 470. Understood through D and E spring of 1875. That was his first knowledge of telephones; no satisfactory means of fixing the date. 42. Reneker, p. 431. D and E in 1875. No tolerable means of fixing date. 43. Jere Fry, p. 469. Ditto. 44. Updegrafi, p. 432. Understood with unknown instrument in spring of 1875. His Visit proved to have been not earlier than April of 1876. 45. 0. B. Kalmey, p. 433. Understood through unknown in— strnments in the summer of 1875, over a line which did not exist until 1878. Previously testified for complainants that he had not listened until 1878. A discredited witness. 46. Eli Greg/bill, p; 435. Fall; not identified. Never saw D or E. A broken-down old man, with no memory. Visit fairly proved to be of a later date. 47. Sinmzons, p. 437. November, through D and E. A thor- oughly discredited false witness. 48. Jacob Evans, 1). 434. An unidentified instrument in De- cember, 1875. Date disproved by attendant circumstances. Previ~ ously testified that he never knew of any until 1877. A discredited witness. 448 BRIEF FOR COMPLAINANTS ON FINAL HEARING. 1876. 49. Hmnme, p. 438. An unknown instrnmeutin February. No instrument alleged to then exist could have done what he asserts; a string telephone could. These are all before the date of Mr. Bell’s patent. But Mr. Bell's invention dates back to October, 1874. The list of those who assert speech before that ends with N0. 36. \Ve proceed to consider the whole forty—nine. This is the strength of their case. Forty-nine witnesses profess to recollect that they heard speech at Drawbaugh’s shop on occasions which they profess to recollect were before the Bell patent. We have already shown that the acts, conduct and statements of the claimant, general and specific, are more weighty than any number of such mere recollections, even with such support as can be got from recollections of others who think they saw something which to them did not talk. The recollections cannot be good. Examination of the depositions themselves shows that they are so inherently Weak as to be worthless: that they are full of statements upon material matters, both as to results and dates, which are absr.;~7m7 nvsm-srmwmmwwrw xx DRAWBAUGH msrnovss D AND E. 459 make upon one of the most complicated and controverted questions a patent case presents,—which of the claimant’s instruments is "operative”; peculiarly had here because the claimant asserts as Operative the sets F, B, C, I, which the Court now knows are not. It involves questions of law and fact, which the Court is to decide. and the controlling elements of which the Court now knows the claimant when he testified was wrong about. JVOZU that is the only question and answer in the whole case in which the claimant asserts enough to incl/re a defence (even if Mr. Bell could not go back of the beginning ofthe Centennial) without accontpang/z'ny his assertion with such a reference to the instruments relietl on as to carry a refutation with it; and this answer appears to state a case merely because it states a conclusion and not a fact, —a conclusion without the facts on which the witness bases it. Next comes a question which is really competent, and we get an answer in which he simply‘ refuses to state as a fact that upon which alone the defence can stand (defts, ii, 861) :— "Q. 401. Please indicate all the electric speaking telephones that you had invented or made prior to the time when the Axle Company, composed of Bear, Grove and others, commenced their operations at your shop. I mean of all the instruments in evidence, and including the cup transmitter. Which ones of all these had you invented and made prior to the beginning of the Axle Company? "A. The teacup instrument, the tumbler instrument exhibit F, the tin can instrument, exhibit B, instrument, exhibit C, instrument, exhibit I, and exhibit A. and the magnetos, exhibit D and exhibit E: those are the instruments, as near as I can recollect, and I had modifications of these instruments; [won’t positively say that D and E were prior to the Awle Company, but I know that at the time the Axle Company was runningl had them there; it may have been prior to the starting of the Axle Company; it may be, but I don’t want to be too positive; I refer to exhibit D and exhibit E.” This only carries it Within the limits already stated, —— the last of which is the late summer or fall of 1876. If these instruments, the earliest which will talk, are to be put be- fore our patent, it is the Court which must tell the claimant when they were made, and not the claimant tell the Court. \Vlien the claimant will not swear positively that the crucial instruments were made before our patent, the Court, as matter of law, cannot so find, 460 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. Int. 265, quoted p. 457, supra, is bad enough for the aSsiguees of a " prior inventor” to put to their claimant; but on re-examination came one that was worse. A direct statement of what his assigneos wanted him to swear to and he had already refused was put indirectly into a question, as if in hopes that he might in some sort give it an implied sanction; but the attempt failed (defts, ii, 1095): — " @1611. The little magneto machines D and E, if I understand you and other witnesses, were made about the time when the Axle Company commenced operations; they were not, it I understand you correctly, the first magnt to telephones that you had made. “Ans. They were not the first: C was the magneto transmitter and I was a receiver; some time after that I used '1’ as a magneto transmitter also.” These two questions (265 and 1611) have one value; they are the plain statement by the counsel who put them, himself both client and counsel, one of the four promoters, and a large party in interest, that the defendants’ ground is that D and E were made in 1875 and not before. \Vitnesses who swear to them before that (and there are several) are not believed by him, and will not be by the Court. Absolutely, the passages now quoted contain all that the claimant Drawbaugh sztys upon the question whether he hzttl D and E before the (late of the Bell patent; but to this we can add a substantial admission against the defendants which he made with reference to H. C. Springer, now to be noticed. H. 0. Springer, defendants’ witness, lived at Eberly’s Mills from April 1, 18713, to the end of December, 1576. He asserts that he was at Dratvbaugh’s shop almost every evening during that period, aiding him in experiments on the telephone; that when he first went there the instruments they used, and the only ones they used, were F and B, -— the tumbler and tin can; that for some months these two instruments were kept continually connected to the wires; that he never saw A, and that it must have been made after he left; and that I) and E were produced as novelties after he had been [here some 7110121118. One thing which he says Drawbaugh specially mentioned to him in introducing them was that they could talk both ways. F and B can only talk one way. If true, this disposes of the case. He is the detentiants’ witness. He cannot be mistaken as to the earlier limit, because his first access to the shop was April 1, 1876. «,1 ’éAIhf‘fiVt‘hE‘KFI‘ ’ SPRINGER DISPROVES D AND E. 461 Springer’s exact testimony is (defts, i, 190; app. 52) :— He moved to Eberly's Mills, April I, 1876, and remained there until the end of 1876, when he moved away. He testified that he experimented continually with the claimant during that time; that is, he began experimenting (if his story be true) when Mr. Bell’s patent was a month old, and when they allege A to have been sixteen and D and E fourteen months old. P. 190. " Q. 4. While so living at Eherly’s Mills, did you or not frequently visit the shop of Daniel Drawbaugh? "A. Yes, sir; about twice a day, noon and evening. " Q. 5. During that time did you see there what he called a talk— ing machine? "A. Yes, sir; that'is what caused me to go down there pretty much every time I went. " Q 6. Did you go down to assist him about talking 011 it or operating it? "A. He boarded with his brother, just above mc,and he stopped till after dinner, and I said. ‘I will go along down, and we will talk through that machine.’ I told him it was a curiosity to me; I wanted to talk with him through it. "Q. 7. During the time that you have lived there, as you have stated, did you see more than one talking machine? If so, how many, to the best of your recollection? , ”A. I saw these six that lays here (indicating B, F, D, E, G, O) ; these two are the first we talked through (B and F). “ [Examiner notes that A, 0 and [are also on the table] ”Q. 8. How soon after you talked through B and F did you talk through any of these other four, D, E, G and O? / "A. It was about two months, or as near as I can tell you, that he hadthesc two, D and E, or two exactly like them; he told me then that he had improved the machine; that he could talk both ways then. Then I went along down; the first we had we could only use to talk in one direction.” "Q. 18. Do you remember how he came to show you these two machines, D and E? "A. He told me he had improved the talking machine, and showed me these. "Q. 19. How came he to tell you that at that time? "A. He told me he had got the machine, that we could talk both ways,—I to him, and him to me. "Q. 20. Did you ask him first if he could talk both ways, and I was this his reply, or was. this his statement without any question? “A. He came down from dinner and stopped in my shop, and ti ld me it' I would go along down now we could talk to each other. "Q. 21. And when you went down you talked through those machines D and E, did you? 462 BRIEF FOR COMPLAINANTS ON FXNAL HEARING. “A. Yes, sir. "Q. 22. Was that the first time you had seen the machines D and E? "A. Yes, sir. “Q. 23 Do you remember any of the conversation that you had through those machines D and E at that time? "A. He asked me how I liked living in ’baehelor’s hall’? I told him not very well. "Q. 24. After you had talked through the machines D and E did you again afterwards talk through B and F? "A. No, sir.” "Q. 32. Do you remember seeing this box I there at any time? "A. No, sir; I don’t recollect of seeing it. "Q. 33. Do you recollect of seeing his machine A there at any time ‘? , "A. No, sir; he must have got that after I left, —-I don’t mind of seeing it.” ”Q. 3;“). You have referred to seven machines in all, as seen by you at that time: are these all the talking machines that you saw there, or were there others? "A. These are all, to my recollection.” And having got in so much of his deposition, the examination was adjourned until the next morning. An attempt was then made to repair him, at first without success. "Q. 62. At the time you were about the shop so much, where did he keep the m‘iehines; were they always attached to the wires, or were different ones attached to the wires, and,.when not in use, were they on the bench, or in a cupbaard, or where? "A. He had a wooden box under a table that he had them in; he had these two (B and F) attached to the wires pretty much all the time, and he would change them and put other ones on when he wanted to talk.” The next two questions were put more boldly, and they brought a little more. "Q. 63. These two instruments D and E, do you remember whether they both had the bottom covered at that time, or were they, as now, one covered and the other uncovered? "A. As near as I can recollect, they were just as they are now ; the one was covered, and the other was not. "Q. 64. Do you remember their appearance when you first saw them; and if so, did they look as if they had just been made, or as if they had been made some time? , “A. They looked about as old as they do noV; as if they had been made a long while; I am satisfied they were not made new.” SPRINGER DISEROVES D AND E. 463 This will not do; it is perfectly certain that they would not have experimented for two months with B if they had D and E. That fact is enough until disproved. Drawbangh in effect admitted it. Springer’s testimony contains in substance two statements. One was that D and E were produced as new after April 1, 1876; but the statement which is more important, both because it is a state- ment as of a fact (not a date merely), and because that fact proves so much, is that they used F and B, and F and B only, for two months or so after he went there. This, if true, is afact which disproves their whole story. F as a transmitter is not only so worthless, but is of such rude construction and workmanship that the mere use of it in 1876 by so neat and excellent :1 workman as Drawbaugh is absolute proof that he had never used it enough or got results enough tojustit'y him in putting the same thing into better form or trying to make another and better one ; and if it was then nine years old, as alleged, its use proves a nine years’ condem- nation of all he had done as worthless. But that is not all. If it he suggested that he had meantime made good magnetos and was now trying whether something could be done with a variable-resistance instrument, our answer is, that if he had attained a hundredth part of the results sworn to, or even if he had attained results which encouraged him to hope, he would not have rested nine years with a broken tumbler for his only instrument of the class; and another answer is, that if the tumbler transmitter F was really the subject of two months’ experiment in 1876, he would never have used with it such a thing as B for a receiver, if he had A or D or E, or even C or I. Indeed, he says that B was thrown into the garret and the membrane eaten off by mice soon after he made the next (and bet- ter) receivers C and I (defts, ii, 1030; p. 154, supra). And Springer swears in terms that B had the membrane on while he was there. Of course it must have had. for otherwise it was not usable. That B was his best receiver in 1876 is well proved by our evi- dence; but dealing now with the defendants’ record above, here was matter in it which must be displaced or their case is lost, and they s'immon Drawhaugh to the task, but in appearance only. Draw- baugh’s deposition contains the following (defts, ii, 903) : — “ Q. 644. Henry C. Springer testified on p. 191 of defendants’ 464 BRIEF FOR COMPLAINANTS ON FINAL HEARING. printed record that about two months after April 1, 1876, you showed him then two little magneto instruments, D and E, and told him you had improved the machine, and could talk both ways then; and that the first instruments that you showed him during the two months prior to that time would only talk one way: were the two little i’nagueto instruments, D and E, the first instruments that you made that would talk both ways or not? “A. No, sir; I had other instruments; instrument C was one and I was another; but 0 was not as well adapted as a receiver as it was as a transmitter. I suppose I wanted to have him understand that those small magneto instruments could be handled more easily from the mouth to the car.” This is his only reference to Springer. This was four weeks after question 265 had been put. The de- fendants had no longer the excuse that the numbers of years were beyond this claimant’s memory. They were brought face to face with two matters offact: Did he and Springer use F and B, and none others, for some months (Springer’s advent fixed the further limit of them), and did he after that introduce to Springer for the first time some instruments which would talk both ways? because, unless he could deny thesefacts, it was only worse for him that the two so introduced were C and I, and not D and E. Now two men in the world, and only two, know the exact truth about this; and there is nothing else so vital to their case. Tile/5r witness Springer asserts it; if Drawbaugh, brought face to face with the matter, could have denied it, or if counsel thought he could deny it, the question would have been squarely asked, or, even it' not asked, the denial would have shown itself in the somewhat discursive answer. His failure to deny what Springer swore would be conclusive if he had not been examined at all on the subject ; but the inefi'ective attempt to have him deny something else Springer said is an unan- swerable confession that he cannot say anything which would be more favorable. "But the testimony is confirmed by two facts which are entitled to great weight. . . . The second is that Stevens, one of the parties to the transaction, was examined as a witness and not only does not deny the facts to which the others testify, but is not even interro— gated upon the subject.” Ely v. McKay. 12 Allen, 328. “ The fact that the appellants, with a knowledge of the case made by the positive testimony of Catherine Reid and the certificate, did SPRINGER DISPROVES D AND E. 465 not call the man whose name was affixed to the paper as a subscrib— ing Witness, leaves but little doubt that it Would not be thus suc- cessfully impeached.” Gay v. Pctipart, 106 U. S. 679. Also cases cited on pp. 130—3, supra. Reading this put of Drawbaugh's deposition in connection with his previous statements that he could only say that he had D and E before the Axle Company ceased, -———which, vague as it is, was strictly after the period mentioned by Springer, —the Court can never doubt what the fact is on the defendants’ record alone. Pres- ently we shall find in their record further confirmation of this. Elsewhere we shall find that the claimant told a number of per- sons in 1878 that he had experimented at an early day, but never could transmit intelligible speech; the Court knows, as of its own knowledge, from the New York tests of the instruments, that he could not have said otherwise, if D and E were after Mr. Bell; but he could not have said anything of the sort if D and E had existed in January, 1875. He knew then, for the time was fresh. In the Winter of 1878—9 Dr. Moffitt, who for ten years had had personal knowledge of all his inventions, found him then at work on telephone improvements; with the defendant, Chellis, he discussed whether they should invest money in them or some other inventions of Draw- baugh’s, and they concluded to take and did take the others because Drawbangh could not antedate Bell, and when this conclusion was announced to Drawhangh he did not deny its correctness. In 1879, in a deposition, he and two other frequenters of his shop (D. A. Hauck and Henry F. Drawbangh) had occasion to state under oath if they could name anything of his which showed real originality and which he had brought to a point where it could he called a good working contrivanee worth having, and neither of them named a telephone. They all knew then whether he had such instruments as D and E a year before Bell was heard of. If his memory be such that the Court is to give any value to it anywhere, he knows now in his heart. It will be a hopeless task to try to make the Court believe of him, at the one crucial and turning point of the case, that which he substantially denied when the time was fresh, and even under the enormous and heartless pressure of an entourage striving to turn pretensions into gold, will not now assert. (For these matters v. pp. 207, 235, supra.) 466 BRIEF FOR COMPLAINANTS ON FINAL HEARING. Search forpmof in favor ofD and E. — \Ve now turn to what there is to lead the Court to believe that early existence of D and E, which the claimant and his alleged coexperimenter do not believe, which neither asserts, and which one of them in terms denies. Proofs against them from the rest of the Drawbauglx family. —- \Ve address the inquiry to all the other members of the claimant’s family, that the Court may know that they cannot give the response which they would give if the claim were true. 1111's. Daniel Drawbaug/z. — His wife must know; there is talk about her; they call his nephew’s wife; they call his wife’s two servant women. They do not call 1161'. No. 55. Henry F. Drawbau/yb, defts, i, 414; app. 112. — Brother of Daniel. It has appeared elsewhere that this man of means never furnished money for a telephone, and that, Whatever he now says, his whole conduct is inconsistent with the story. It has also appeared that, if his testimony be believed, he never knew of telephones until five years after the time when the defendants allege Daniel had practical instruments (V. p. 395, supra). \Ve are now concerned, however, with his specific testimony about D and E. (t From July, 1872, until he began running a private line of freight cars of his own to Philadelphia, Baltimore and New York,” which, "according to his recollection,” started in May, 1876, he Was at Daniel’s shop " quite often” (ans. 29, p. 417). He says (ans. 71, p. 424) :— “I saw C, I, A, D before I commenced rtinning the cars. W'hile running the cars, and from that up, I was in the shop a great (leal ; these [indicating E, G, K, L, M, N, 0] all look to me about alike. I can’t tell t’other from which. I identify this machine, A, by the mouthpiece on one side of the centre, and this machine, D, by the curled magnet on the back of it. I identify the machine H also; I remember seeing him Working at it in the shop; I was helping him on that machine, I remember. I don’t remember anything about J. I have seen all the others,— E, G, H, L. M, N, O, and helped him operate them while I was runningr the ears and later. I remem— ber talking through them and listening at them, but I can’t tell which first and which last; I can’t remember the order in which they came along. “Q. 77. What is your best recollection as to the time when you first saw this machine D? THE DRAWBAUGH FAMILY CANNOT PROVE D AND E. 467 “A. My impression is that I seen it before I started running the cars; I could not tell what year; I recollect it by that curve.” But he keeps improving, and presently is led up to saying :— "Q. 79. Do you recollect talking through or listening to this machine D before you ran the cars? “A. Yes, sir; I think it was the summer before.” Then, as conversation can be held backward and forward with D and E, but certainly not with B and F, the defendants ingeniously tried to lead him further, and asked him whether he didn’t talk batkwards and forwards before he began running the cirs. He says:—— " Q. 80. When you were experimenting with your brother Dan during the time that you were running the cars, or before, did you use one instrument to talk into and another to listen at, or did you use the instruments in both the ways that I have mentioned? State your recollection of the whole matter referred to in this question. "Ans. No. When Ihelped him there was always one at each end of the wire; when he was working at night he always had the Wire long enough so that he could have it at the work bench, and Work and file and adjust it Without disconnecting the wire. [Question 6ft?— plained to witness, and explanation illustrated by mac/tine D. 1W!!- ness continuesfl We talked and listened in the same one; If we were using this one D we would talk into it, and then put it to the ear to receive the answer; I think we used B and F the same way, but I won’t be positive about it, because it was so long ago; I know that we used D that way.” F is a transmitter only, and cannot be used forlistening. Felo de 86. He says that he recollects D by the " curled magnet,”—“ the curve.” Ifthis be true, it must have been quite old when he first saw it, for it was made with a box bottom, like E. entirely Covering the magnet. The bottom would not have been lost early. Recog- nition by the curled magnet is pure romance. No. 90. John B. Drawbaug/z, defts, i, 591; app. 189. «He is the other brother, who lived next door to Daniel, and actually Worked in the shop in March, April and May, 1875 (Capt. Moore, defts, i, 645): The general character and effect of his testimony has been stated on p. '404, supra. He says (p. 609) :— " Q. 74. Please look at the machine A now shown you, and state whether you ever saw it before; and, if so, whether you can fix the tune when you first saw it. 468 BRIEF FOR COMPLAINANTS 0N FINAL HEARING. “A. I saw the machine before, but I can’t fix the time when I first saw it. “ Q. 75. Answer the same question as to the machines D and E. "A. I have saw the machines about the shop, but I could not hx any time when I saw them.” That is all he says about their dates. He says that while working for the Axle Company he helped Daniel talk from upstairs to cellar. He does not state with what instruments, but if he had used D and E as new instruments he could hardly have forgotten them. He does not say that he ever used them. He does say that the best he could hear was " some words, not all.” No. 91. George W. Drawbaaglc, defts, i, 623; app. 197. —— Son of John B. Drawbaugh; lived in the Village; worked for the Axle Company two weeks in May, 1875 (defts, i, 0'45). Ha-s seen D and E; is not even asked and does not state when it was orwvhether he ever tried to use either of them. No. 87. [lawman If. Drawbaugk, defts, i, 573; app. 177.— Another son of John B. Drawbaugh; he says that he made. D and E under his uncle’s directions, and with some help from his uncle about the woodwork, etc., in January and February, 1875, and just before the Axle Company began. HoEsinger flatly contradicts him about this, and so do Fettrow’s books (q. v. p. 501, znfm) The testimony is fully quoted in the appendix, p. 177. Somewhat impressive as his deposition appears at first sight, therefore, We know that it is entirely at variance with that of another and equally conspicuous witness for the defence, and cannot stand the test of comparism with written evidence. Thus, among the Drawbaugh family Harmon’s mistaken testimony is left to stand against all the others. On the testimony of the family, giving espc ‘ial weight to the claimant himself, the Court must find that D and E did not exist before the Bell patent. WITNESSES TO PROVE D AND E. We now turn to the witnesses who undertake to fix dates for D or E. Some of them have been enumerated on pp. 381 et 869., supra, but will be here again leferred t0. n... r, Wm,“ ,, . ,v. ,r,. D THOSE WHO ALLEGE SPEECH THROUGH D AND E. 469 No. 125. IV. H Decker, defts, ii, 1149; app. 251.——He has already been enumerated, and the folly and worthlessness of his deposition has already been considered (app. 251, and p. 425, supra). He says that at his second visit, which he alleges was in " the com- meueement of the fall” of 1874, he talked through D; that there were then six or seven instruments at least setting around on benches and on shelves; as he puts it elsewhere, ":1 good many.” It is enough to say of this witness that the defendants do not believe and do not want the Court to believe this story, for they allege a later date for the instruments. No. 18. Jeremiah Fry, defts, i, l50; app. 43. —Lived at Eb- erly’s Mills spring of 1875 to spring of 1880 (about the time this controversy began), and near by since then; kept. store there at various times since October, 1875. At some time Drawbaugh showed him something which he said was a talking machine, and he describes what took place as follows: — A “mtg. 14. Did he talk through any of the machines to you at that "A. He sang.” Never tried the instruments again until 1880. Says that the machine he listened at was like D or E, and that this was April 9, 1375, because that was when he thinks he sold Drawbaugh some potatoes, — pretends to no other way of fixing the date. Afterwards, the witness " talked with several persons that it is a very good thing iflze gets it accomplished,” and they agreed with him. Plainly his date is of the vaguest— is simply Worthless; and no one can rely on his statement of it. The result he states and the effect it produced on him do not agree with what the defendants attribute to D and E, nor with what is to be expected from them. Indeed his deposition certainly strikes D and E out of it. He says that at the visit which he thinks he is talking about he saw "a glass tumbler” and " a tin box,” which he identities as F and B. When asked whether Drawbaugh “ml/red” through a machine, he replies that he " sang.” The consequence was, "I talked with several W ')1‘ -ALNJRz; ..,: 470 BRIEF FOR COMPLAINANTS ON FINAL HEARING. persons, that it is a very good thing {flee gets it accomplished”; they agreed with him. This is exactly the use and the only use that can be made of the couple F and B and exactly the remark which would arise from seeing them and being told that Drawbaugh wanted to make them talk. But D and E would never be used to sing and not talk; nor could , they have given rise to such a remark as that which we have put in italics. But we have not the slightest confidence in his date. liis testimony shows that he and all those with whom he talked recognized at once that a real telephone, " if he gets it accomplished,” would be valuable; but plainly they also agreed with him that it was not yet “accomplished.” No. 45. Isaac B. Millard, defts, i, 338; app. 90.—-This wit- ness has already been enumerated on p. 385, supra, and there already condemned by his statement that in 1869 he plainly heard speech through instruments which cannot talk and over an outdoor line which did not exist until eight or ten years later. The best he can be got to say for date about D and E by a series of leading questions is that he talked with them in Cold weather before the Centennial, and he does not remember that he was there between the opening of the Centennial and 1880. But his memory is plainly very vague, for he first puts it as in 1874, which is too early to fit the defendants’ story. No. 48. D. Feltrow, defts, i, 362; app. 94.——He is the black- smith at Eberly’s Mills. In 1868 the claimant bought a double house and the blacksmith’s shop, and Fettrow at once hired one half, and they lived there together until April, 1876, when Fettrow bought the property and has lived there ever since. He has been a cmstant frequenter of the shop. He says that he never saw a. talking machine, and Drawbaugh never spike to him about one, before a time which he states as March, 1875, and that all he had heard the neighbors say about it before that was " tomfoolery.” \Ve have elsewhere commented on the conclusive proof this affords that no practically operative telephone existed before that date. He now says that about March, 1875, Drawbaugh first showed him a talking machine and talked to him through it. Being asked which it was, he says (1). 365) :— THOSE WHO ALLEGE SPEECH THROUGH D AND E. 471 "A. 18. Figures were not mentioned at that time, but there was a curl on like that (taking up D); I would not just positively say that is the one, but it was just like that; now here is one (taking up E) that When you take the lid off is just the same way, so that I could not positively say.” From that time on he was at the shop "frequently”; " once a month or may he once a week (ans. 33—8, p. 367), and says that he generally saw " talking machines, or what he took to be such,” but apparently never tried to talk except the once. The only reason he offers for naming any particular date is that on March 26, 1875, he did his first work for the Axle Company; but his books show that he did jobs for them " every few days ” until they ceased ; the last is charged September, 1876. He states his recollection to be that he saw the talking machine while doing one of his earliest jobs. The inherent weakness of this is apparent. He professes to recognize the instrument D by the " curled” magnet. Drawbaugh testifies in terms (ans. 247, defts, ii, 824) that D had a bottom or cover as E now has, entirely hiding the magnet. He does not say when it was lost, but, as their story makes the in— strument less than two months old at the date named by Fettrow, it is not supposable that the bottom had gone so soon. Handling in this case by the few witnesses who swore to it had so loosened the unpro- tected magnet that it had to be secured by a new attachment before it could be used; we are not going to believe that the cover disap- peared in tWo months, and that it was afterwards used six years without any. Moreover, at " some time ” after it was made, though no one tells us how long atter, Drawbaugh cut a recess in the Wood— work, whieh required it to be put in a lathe; if the brttom had been lost before that it would have been then replaced. Plainly the fact is, either that Fettrow saw it at a much later day, or doubtless he and others now fix upon as the means of identification that feature which is striking now, but was not visible at any early time (pp. 470, 478). It is certain that Drawbaugh cannot bring to his mind the slightest recollection of this alleged Fettrow incident as of the date stated, because after Femow had testified Drawbaugh refused to say that 472 BRIEF FOR COMPLAINANTS ON FINAL HEARING. thes ever saw it with the bottom on, yet the bottom mu~t have been on and covered the magnet (pp. 470, 478, supra). The whole rather impressive story of recognition told by this witness must be untrue. No. 15. Daniel B. Condi'y, detts, i, 145; app. 43. —’\1iller; has lived in the same place and a quarter of a mile from Draw- bangh’s shop ever since September, 1875 ; says that about Christmas, 1875, he saw some talking machines there and professes to ideu‘ify B, D, E, F and A; has frequently been at the shop since and seen other talking machines and once talked through one; cannot identify any of these. His cross-examination shows that he has no definite THOSE WHO SAY THEY SAW D AND E. 485 memory about anything. He says that he has been talked to through Same of the machines and he could not say when, but never through A, B, D, E or F; he only talked through machines once. He was asked what business was carried on at the time and he spoke of clocks and faucets, and apparently knew nothingr of the axle busi- ness, which was carried on at the time alleged for his visit. The clock business was in 1877 and 1878. Drawbaugh’s story is that F and B had been superseded and sent to the garret long before. He says that when he made his visit of Christmas, 1875, Draw— baugh showed him how D and E were to be used, how placed to the mouth or ear, but did not talk through them, — not credible. No. 28. Jacob B. S/zettel, defts, i, 215; app. 63.—Par:ner in .the clock, and never attempted to talk through a telephone. and Draw- baugh never asked him to join in it. He is a nephew of John Draw- baugh, Daniel’s brother (complts, i, 982). He has Very frequently been at the shop for the last ten years. He says that he saw D and E ” about 1875.” He never talked through them. Such a statement from such a man under such circumstances is absolutely worthless on the question whether he saw them in 1875 or 1876. His character as a witness was very much injured by his deposition, particularly by the gross exaggeration he indulged in on the subject of Draw— baugh’s "poverty.” He was a nephew of Drawbaugh’s brother; visited the shop early; afterwards became Drawbaugh’s partner in the clock enterprise. . No. 33. John H. Step/tens, defts, i, 260; app. 76.—He has been a constant visitor at Drawbaugh’s shop from 1870 up to the present time, sometimes twice a day, and sometimes two or three times a week every year; " sometimes I missed for a couple of months that I didn’t get there” (ans. 22 and 23, p. 261). He says that he saw D in 1875, but there is nothing whatever to enab'e him to fix the date. Did not use them. We introduced evidence which shoWed that in the fall of 1876 he returned from Drawbaugh’s shop; said that he saw Drawbaugh at work on. a talking machine, and inentionedeit as an entire novelty. 486 BRIEF FOR COMPLAINANTS ON FINAL HEARING. No. 54. J. M. TVZ'SZGT, defts, i, 410; app. 112. — Has known Drawbaugh twenty years; he has been at the shop a good deal. " I used to visit there a good bit.” Says that in the spring of 1875 Drawbaugh showed him D and E, and told him that he had just tin— ished them. Never tried to talk through them. Drawbaugh showed them to hint and took them off the table and said, you can put one to your mouth and talk and the other to-your ear and listen ; but they didn’t do it. There is absolutely nothing to enable him to say that he saw them in 1875 rather than 1876 or 1877. No. 65. George L. IIale, defts, i, 493, 694; app. 134. ——-A1ready enumerated and noticed. He says that he Vas at Drawbaugh’s shop in the fall of 1875 and saw D; never used it; thinks that he has not been there since February, 1875. That is his statement. of what he saw when there alone. We believe he never saw anything of the kind ; it is absolutely impOSsible to control him and prove What he did or did not see by anything directly bearing on him. His testi— mony is that he never saw the instruments used. No. 17.65. Jacob H. Vamzsdale, defts, iii, surbtl, 788; app. 668. No. 268. Jacob R. Ensminger, det'ts, iii, surbtl, 808; app. 669. They testify that they made a visit to Drawbaugh’s shop on the 2d of February, 1875. A book shows that they were then at work at or near Milltown. They say that while at work at that place they went to the shop and saw a number of machines, and amongfir those recognized the eurTed magnet of D (ans. 28, p. 791), " but it was not put together that way; this curled magnet it appears to me was lying with these others, but not fastened to any block. I know he was looking at this curled magnet, and he told us that it belonged to a talking machine.” Ensminger testified very much to the same effect. This testimony depends purely on the strength of memory, the veracity and the general reliability of these witnesses. Their eross-examination left them in a not very favorable light in one respect, as it showed that though they testified at first that they had worked together only on this one particular occasion. they had also worked together a year later; and it is also a subject of suspicion and remark that men who rest merely upon memory, who have no THOSE \VHO SAY THEY SAW D AND E. 487 course of action to show what they saw orlearned, and who, in the na- ture ot'things, and from what they testify to, cannot by direct proofs be controlled, rebulted or disproved, should he brought forward at the eleventh hour in surrebuttal, at'ter testimony in Chief which con- sumed nearly tWo years in preparation and taking. They are of small strength towards carrying the burden of this case. Never listened. No. 57. W. H. Bates, defts, i, 438; app. 119.—This man is such a representative witness that he is worth considering at some length. He is a blacksmith; has known Drawbaugh thirty-five years. He says of their relations : — "A 24 We were very intimate friends, and I went to see him pretty of,ten and we exchanged opinions about mechanism.’ "A. 23. His gene1al conversation was about talking machines; seve1al times tn: 1t I was there his mind seemed to be taken up with it. He said he would like to get it patented, but he hadn’t the means to do it. He said he could 111. 1ke a tortnne out of it.” He lived at Shiremanstown, two or three miles from Drawhaugh, from the spring of 1868 until the spring of 1871. Then went West for two years, and lived at Shiremanstown again from the fall of 1873 till the spring of 1878. In the fall of 18138 he worked for Draw- baugh in the village, making tools for the Faucet Company; he worked at that for about four months. During that time he would be at the shop sometimes twice a day. After moving back to Shire- manstown, in the fall of 1873, he began to go to Drawhaugh’s shop in the summer of 1874, and continued to go there, he says, until the fall of 1877. In one answer he says that he was there during that period eight or ten times, and in another answer he says that he was there " pretty otten.” They must have conversed a good deal about talking m1chines, because. besides the matter already quoted, 11 says, upon being cross-examined as to what was told him about one particular machine, “It takes a good mommy to connect a whole hour’s conversations” (ans. 27). He says t hat they talked about getting the thing patented. "A. 29. He told me it would take the placo of telegraphing, and remalked that it he had money enough to get it patented he would be well h'xet . 488 BRIEF FOR GOMPLAINANTS ON FINAL HEARING. "A. 30. I told him it was a grand pity he had not the money to at it patented.” "A. 33. i think the first time we ever spoke together about the talking machine he wished he had money enough to take out a caveat for a patent.” Here is a man who, in the first place, ought to know everything there was to be known; in such relations with Drawhangh that if there were talking machines there when he worked for the Faucet Company four months in the fall of 1868, eighteen months after persons swear they had talked through the machines, he ought to have known it. Yet his positive, explicit testimony is z — "Q. 9. When did you first see talking machines there at his shop? "A. In 1874, in the fall.” Moreover, the defendants examined him as if his first visits to the shop were in 1874-, giving no intimation of anything earlier; his earlier relations and consequent disproof of that part of their case were brought out on cross-examination. Such testimony from sueh a man gives the lie to ail the earlier part of their story, and this shows that they knew it. He then testified that at divers times he saw B, F and C; that in August, 1875, he saw A, D and E, and about the summer of 1876 he saw H. He was a frequent visitor during the three years, and he has nothing but unaided memory to fix any date by. He says he got some axles turncd, but he had that done at other times also. He thinks he saw H. His deposition is Very weak, but it' there be any foundation for it he may have seen the alarm that Shettei mistook for H, or the box that Dellinger saw in 1877—79, which was not H. ' His story is that he saw A, D, E, H. Yet in spite of the ease with which these instruments may he used, and the fact—it this man is to be believed—that they talked about thcm by the hour, a: i! were " very intimate, exchanged opinions about mechanism,” and agreed as to the enormous value of a speakingr telephone, he never talked through one in all these years, and never asked to talk through one. One day when something was said about talking through one, instead of that they look at an electric clock. That kind of a story is pure romance. THOSE WHO SAY THEY SAW 1) AND E. 489 Again, the time when this man alleges he was chiefly there Was from the summer of 1874 to the fall of 1877. .During all this time he says the great thing in Drawbaugh’s mind was the talking ma- chine, but from the first time they spoke of it Drawbaugh’s only trouble was that he hadn’t found money enough to take out a caveat. We know that is false. He owned real estate, and had other re- sources which We have repeatedly mentioned and plenty of time and means to make all the contrivances enume 'ated on pp. 321, supra. Again, during the lime referred to in this man’s testimony, Draw- bangh published his advertising card and list of inventions, and there is no telephone in that list. During this time also, the Hancks Were at the shop more or less, and that there was no telephone there in their time is proved not only by their own depositions in this case, but by their cross—examination and Drawbaugh’s cross-examination in the faucet case (p. 225, supra). During the time of this man’s visits, when he knew so much, Drawbaugh completed his magneto key, exhibited that in Harris- burg to several electricians, but never said a word about talking machine to any of those men (p. 320, supra). Finally, the testimony of the Axle Company, and everybody con- nected with them, the testimony of Spriner, and indeed Draw- bangh’s own deposition about D and E (p. 493, infl’a), are incon- sistent with and therefore contradict this witness, just as this witness’s testimony is inconsistent with and cont'adicts the earlier part of the defendants’ story. Such a deposition under such cir- cumstances is not only too weak to stand against the weight of evidence which disproves the story, but it leaves the Court with the certainty that this man, who, from his occupation as a mechanic and his intimacy with Drawbangh, ought to make a fairly good witness, is proved to be perfectly worthless and unreliable. \«Vhatconfi- dence can be placed in any part of the record of which this is one of the best samples? ”K BRIEF FOR COMPLATNANTS ON FINAL HEARING. Summary of witnesses who say that they saw D or E before the Bell patent, but did not take the trouble to listen. Slitremau, p. 478, supra. A frequent visitor ever since. Swears to A, D, E, a year before the dates when the defendants allege they were made. D. Rupp, p. 478, supra. Was a frequenter of the shop from 1868 to 1880, and had business there in the earlier time; his first alleged knowledge of any talking machine was seven years after the time when the Court is asked to believe every one else knew of them. Apparently gives no date for D and E; if he does, it is July, 1874, seven months before it is alleged they were made. “Tong as to other dates. Jacob B. Fry, p. 480, supra. Then a boy fourteen years old. An almost daily Visitor at the shop since; no attempt to fix a date except by an arbitrary association]; fairly proved to be at least a. year out of the way. Shopp, p. 479, supra. “ 1874 or 1875.” Absolutely nothing to fix a date by. Updegrafi‘, p. 483, supra. His alleged visit proved to have been after April 1, 1876. J. Balsley, p. 483,3upra. Says that they spent a long time talking about it, but did not try to talk through it. His story of what he did or did not see shOWs that his memory cannot be trusted. Oonclry, p. 484, supra. Neighbor and fi'eqnenter of lhe shop; nothing to fix a date by; memory shown to be Worthless; if ae- eepted. it shows the date to be 1877 or 1878. S/zettel, p. 485, sapra. “About 1875.” Extremely vague, and nothing to fix a date by. Diseredited by his assertions of good speech through F and B. Step/tens, p. 485, supra. Constant visitor; nothing to fix a date by. Contradieted as to date of visit. ‘ Wtsler, p. 486, supra. Nothing whatever to fix a date by. The instruments handled, put to mouth and ear, but not talkell to. Vunastlale and Eusmtnger, p. 486, supra. Assertions resting on memory and veracity. Testified only in the last year of the ease. SUMMARY or PROOFS ABOUT D AND E. 491 Not supported, and their truth or falsehood cannot be directly tested. Hale, p. 486, supra. A bare assertion not supported nor capa- ble of being directly tested. W. I]. Bates, p. 487, supra. A frequent visitor until the end of 1877. Nothing to fix a date by. His story is inconsistent with the rest of defendants’ testimony and equally incredible. Summary of the evidence about D and E. —It' made originally as they are now, they would have been practical instruments. They are the only ones alleged to have been made before the Bell patent which are. Tests that we compelled the defendants to make have proved this (p. 162 et 869., supra). This case must turn on their dates. Eight witnesses only pretend to swear to speech through them be- fore the Bell patent. Of these eight, three fall to pieces at once. Decker saw D in August, 1874, and recognizes it (of course) by the curled magnet (deftswii, 1158, ans. 54) ; the defendants assert that it was not made until 1875 (v. p. 460, supra). G. A. May saw H at the same time that he used D and E. The earliest date alleged for H is August, 1876. Simmons is too plainly a liar to be dis— cussed. That is rather a heavy proportion to lose at once. The other five have hardly more than mere memory or arbitrary associa~ tions to fix dates by. Millard thinks that he did not go to the shop after the early spring of 1676, but he has nothing to aid him in that. How much are they supported by the fourteen who allege that they saw D‘and E in 1875, but did not talk through them? These four— teen testify purely from recollection. They have no respectable way even of fixing dates. Shireman, Rnpp and Updegratf at least are specifically proved to be wrong. The depOsilions of all show un- reliable memories. They cannot help the ease. D and E, Whenever made, were striking instruments, and marked the turning point in his work. That during the year before the Bell patent two thirds of those who saw instruments at his shop talked about them but did not attempt to talk through is such strong proof that they did not see instruments like D and E, which were always ready and in condi- tion, as to deprive their testimony of value. In considering how 492 BRIEF FOR COMPLAINANTS ON FINAL HEARING. much their “ recollection ” has of the past and how much it is the result of recent impressions, it is very instructive to find that nearly all recognize D by the curled magnet, which is the most prominent thing now, but which they did not see then (pp. 472, 480, supra). Proof against the existence of D and E before 1117'. Bell’s patent. —The weight of evidence against the existence of these instruments even before Mr. Bell’s patent is overwhelming. The defendants record alone furnishes enough to end the case about them. It is of several kinds. The regular occupants of his shop, to wit, the Axle Company, during the year before Mr. Bell’s patent, and some months afterwards, could not have helped knowing about them and using them. Not only what they did not see, know and do, but what they did see, know and do, specifically dis- proves the existence of D and E during that time. Two of the defendants’ witnesses, who came to the shop in the spring of 1876, and frequented it a good deal, one of them, Springer, specifically swears that D and E were produced as novelties afterwards. Draw bangh expressly swears and if he did not the Court would know the fact to be so from inspection of the instruments—that after D and E were made, and indeed after the first metallic diaphragm instruments were made, F and B, and particularly the tin can B, went to the garret, had the membrane eaten off by mice, and it never was re— stored. It is certain, therefore, both in the nature of things and from Drawhaugh’s own statements, that whether he did or did not occasionally show B as a curiosity, the use of B to talk through, even its exrstence and exhibition With the membrane on, are p0Slthe facts which disprove and displace D and E at the time of any such exhibition or use. Now the proof is plenary that B was used and was the exhibition instrument in 1875, 1876 and into 1877. Finally, Drawbaugh himself proves that D and E did not exist be- fore. the Bell patent. His conduct in 1876 shows it. His repeated dcclarations in 1878 and 1879, when his memory could not have failed him, show it. He knoWs to—day that he did not have them, because, when inter] ogated on the Witness stand, under circumstances which put peculiar stress upon him, to tell the best he could, he did not dare to assert that they existed before the Bell patent. rm.- w SUMMARY OF PROOF AGAINST D AND E. 493 Prooffi'om Drawbaug/z. —— Besides the probative efl'ect of Draw- baugh’s course of conduct as a whole, there are certain specific mat- ters directly bearing on D and E. No inventor who had D and E in the beginning of 1875, and the highly organized microphones L, M, G, O, H, by midsummer 1876, when he first heard of the relatively feeble results which made Bell famous in that year. Would doubt that he antedated him, yet Draw- baugh made no sign, though .his associations, partieulariy with Hol- singer and Shapley, would have compelled him to speak if there was the slightest foundation fora claim. His conduct with Shapley proves that he knew there was none (1). 204, supra). He continued giving no sign of claim, but repeatedly disclaimed by word and act. In the spring of 1878 he knew his dates, and he then stated 'spe- cifically to Mathews, who published it, and to Weaver and Grissin- ger, who remembered it (p. 207, supra), that whether he had tried or not he had never (lone enough to antedate Mr. Bell. His talk and conduct with the other newspaper visitors amounted to state- ments of the same character and not less fatal. His experience with the county history people and his own auto- biography prove that he knew that he was not the inventor of the telephone (p 222, supra). In the fall of 1878, Dr. Moflitt, who knew all he had done, deter- mined, upon conference with the defendant Chellis, that Drawhaugh had not done enough to antedate Bell (p. 231, supra ). When this conclusion was more than once announced to Drawbaugh, the most that his vanity and the growing importance of the telephone could prompt him to say was that he did not know. In the summer of 1879 his conduct and his specific sworn answer upon the cross-examination of David A. Hauck and himself are statements of the most conclusive kind, that, whatever he had or had not tried to do, he had not invented the telephone (p. 225, supra). All these arefacts. Some admitted by the defendants" witnesses; most of them proved by contemporaneous print; all vouched for by consistent action; none of them contradicted. 1V0 explanation qfl'erecl in the proof to reconcile them and this claim. Drawbaugh knows ofnone; it is left to counsel. Such was the testimony of his conduct before this suit began. 494 BRIEF FOR COMPLAINANTS ON'FINAL HEARING. On the witness stand, pressed three times by counsel, and after Springer and Moore had testified, he did not dare to swear that either D or E were made before the Bell patent. He said that he (lid not know in what year they were made. The best he dared to do was to say that he had them during a period which began early in 1875 and ended late in 1876. If true, that does not touch us. The answers are quoted p. 455, supra. The conclusiveness of this against the defence cannot be overesti- mated. Events, after the issue of the Bell patent, sworn to in the defendants’ record. Many of these We do not believe; but they are matters in their record, material, and deliberately offered as such. ' We now proceed to bring together some of these proofs. No. 24. H. O. Springer, defts, i, 190; app. 52. — He moved to Eberly’s Mills, April 1, 1876, and moved away at the end of 1876; the defendants assert that all his knowledge is confined to what he saw during that period. He positively swears that for some months after he went there he and Drawbangh experimented nearly every night with F and B, and after that D and E were produced as novel- ties. Drawbaugh substantially confirms this. Brought up by his assignees to deny this, he will not. He will not assert thtt D and E were made before the Bell patent. [Is dectm‘es that he does not know in what year they were made. See this at length on p. 458, supra. Now, if Springer’s story is true, the inevitable conclusion from it. is that D and E could not have been made before the summer of 1876. If it is not true, it is a striking example of the worthiessness of the mere recollection of witnesses unaided by written evidence or by facts and circumstances as to which there can be no doubt, directly and necessarily connected with the facts as to which the wit- ness speaks. We do not ncccpt Springer’s story as true. We do not believe that he saw D and E at the time he says he did, if he ever saw them, because we do not believe they were in existence during the Cen- tennial Exhibition ; but the defendants cannot and have not asked to reject it; it is enough here to show that it is inconsistent with the SUMMARY OF PROOFS AGAINST D AND E. 495 Witnesses’ testimony, who assign an earlier date, and that even if rejected it furnishes an additional reason on general considerations for the rejection of the testimony of the various witnesses to the ex- istence ot'D and E at an earlier date. » No. 59. W. S. Dell/Inger, defts, i, 459; app. 124. —He first went to Milltown in March, 1876, and ran the grist mill there almost up to the day he testified in 1881. He was an habitual visitor at Draw- baugh’s shop. He testifies that he saw E in March, 1876. The value of dates stated from his mere memory is, of course, small, but upon facts—such as that he remembers seeing certain instruments in process of making after he went there—~he is more likely to be correct; if he is to be credited at all, he is to be credited about them. He testifies (defts, i, 471) :— "X Q 136. What instruments did you see him work on? "A. I seen him work on woodwork, and on these curled magnets (taking up D), also on these wires; he had a machine that he was working on that was putting thread or something on the wires; I don’t know what it was. "Ar Q 137. When was it that you saw him working 011 the curled magnets? "A. That I am not able to say. “X Q. 1558. Can’t you tell whether it was during the first year, 1876, or some of the later years? "A. I don’t remember. "X Q. 139. Do you remember what he was doing on the curled magnets? “A. He was workingr on them with a file, if I mistake not; he had a tool any how, that he was working with. "X Q 140. Did you see what he (lid with them after he had done working on them? ' "A. He fitted them into the wooden boxes here on this pivot (illustrating with E).” P. 474. “X Q. 160. Do you remember when it was that you saw him at work on the curled magnets? "A. I don’t remember. "X Q 161. You could not say whether it was in 1876, or in seine following year, could you? "A. I could not say what year it was in, — that is between 1876 and 1881.” - This is a clear description of the making of an instrument and of putting the parts together for the first time. These magnets, called by all the witnesses the curled magnets, are peculiar; no other 496 BRIEF FOR COMPLAINANTS ON FINAL HEARING. instruments contain the parts he specifies; and he uses the plural throughout. Drawbaugh swore in terms that he never changed or altered D or E, except cutting a recess in the interior of the wood- work of D, and in particular that he never changed the magnets on them. All the testimony about this is quoted, app. 125. That is not all ; Drawbaugh says that D and E were made after A. Dellinger, who did not come there until March, 1876,18aw Draw— baugh making A at some indefinile time after that. " X Q. 151. Did you see Mr. Drawbaugh at any time doing any- thing on any instruments except working on the woodwork and on the curled magnets and wires? “ A. Yes, sir. V " X Q. 152. Wha? did you see him doing? "A. I seen him work on these kind of screws and brass pieces like that (indicating the milled screw and the brass brackel on the back ofinstrmnent A). I could not say that this is the one that I saw him working at. " X Q. 153. Do you remember what he was doing on the brass bracket ‘1 " A. He was polishing it off with a little machine that had a leather pulley on. He used something to put on his leather pulley to polh‘l] it bright. ’ “A7 Q. 154. \Vhat did he do With the piece after he had got it polished? "A. I left the shop; afterwards when I came down he had it attached to a machine like the machine A, to the best of my knowledge. “ X Q. 155. Did you ever see more than one machine at Draw- baugh’s shop like machine A? “A. I don’t remember that I did.” " X Q 162. Could you give us any idea of when it was that you saw him at work on a brass bracket like that on instrument A? "A. I could not say exactly. I could not give no time how long.” No instrument except this single one, A, ever had a brass bracket. Drzuvbaugh has sworn that he never changed this instrument after it appeared in the condition testified t . (det'ts, ii, 1107; quoted in app. 125). So A was made after the spring of 1876. D and E after that. There are certain other witnesses called by the defendants who have a considerable bearing on the question of the existence of D and E in the spring of 1876 at the date of the Bell patent. SUMMARY OF PROOFS AGAINST ]) AND E. 497 David Oowens, p. 440, supra, a witness for the defendants, asserts that at a time which he thinks was about the first of May, 1876, he listened at Drawbaugh’s shop at an instrument afterwards described as a hole in the wall. This certainly was not D or E; it does not correspond to anything produced, and if his testimony is to be ac— cepted, it disproves the existence of D and E. Urz‘as R. Nichols, p. 429, supra, saw A, and was told by Draw- bangh that it was sixty days old at a time which the defendants Wanted to show was January, 1875, but Which has been conclusively proved without contradiction to be in 1878. Now their story is, and Drawbaugh expressly swears, that D and E were made after A. Henry B. Masser, p. 424, supra, says that he visited the shop to get his reaping machine repaired in the summer of 1874 and in the summer of 1876 and in 1877. He says that he saw F and B on his first visit and D and E on the second, and talked through them each time. We have absolutely proved that he was wrong about F and B, and that he could not have seen them until his second visit. As he saw D and E after he saw F and B, and not at the same visit, the necessary conclusion is that he did not see these two instruments until at least 1877. Certainly he is not a reliable witness to prove that he did see them in 1876. But his testimony goes a little more than that; with the positive proof that it was in 1876 and not before that he. saw F and B, we have a fact like that brought from Springer which displaces D and E, and indeed displaces the whole case for them. If F and B were then so shown to a caller, not as curiosities but rigged up and attempted to be talked through, it is absolutely certain that D and E did not then exist. Samuel Nichols, p. 384, supra, says that he listened when B and F were used and heard two words .only. This is one of the few stories in the book which are within the possibility of truth; but the defendants wanted it to appear that that visit was in 1869, whereas it has been conclusively proved to be not earlier than June, 1876. [Jenny Bag/ler, p. 401, supra, listened and talked through F and B under circumstances which make it certain, if there be any truth in his story, that that apparatus was the best Drmvl-mugb had. The defendants wanted to Inake it appear that this was in 1873, but it . has been conclusively proved that it was some time after the spring of 498 BRIEF FOR COMPLAINANTS ON FINAL HEARING. 1875, and may have been any time up to the spling or summer of 1877. Thomas Draper, p. 427, supra, swore that he heard through 0 and I under circumstances which make it certain that the apparatus ex- hibited was the best Drawbaugh had. The defendants wanted it to appear that that was in 1874. It is certain that it was in 1877. Wilson N. illiller, p. 305, supra. His testimony, when the true date given by his books is applied to it, proves. that in the winter of 1877—8 A was the instrument Drawbaugh was showing as his best. That disproves D and E, and shows the WorthleSsness of an unsup- ported memory. Elt’ Gray/bill, p. 435, supra. Pretends that he thought of ad— vancing money to Drawbaugh. ' His story is absurd, but part of it is that in the fall of 1875 he talked through some machine which Vas not D or E. We do not suppose that; any reliance whatever should be placed on anything said by such witnesses as a basis for overthrowing such a patent. But they are the defendants ’ witnesses. What they say, with the corrected dates, is a part of the defendants’ story which they cannot reject. Their proof that B and F were used when these witnesses’ visits are proved to have taken place disproves the exist- enee of D and E at any time before the date of the Bell patent, and exactly agrees with the repeated statement of Drawbaugh that he had never done enough to antedate Bell, and with his deposition, in which he is unwilling to swear that D and E were made before the date of the Bell patent. The defendants cannot escape from this result unless upon the ground that their witnesses are to be judged by their conformity to an alleged and aesumed story; and the attempt to get rid of these witnesses carries with it their whole fabric,—dis- credits their whole record. Complainants’ witnesses who prove that the tz'n can B was the best thing in 1876. -——In October, 1876, R. E. Shapley and I. D. Lan- dis, purposing to put some money in Drawbaugh’s inventions, went to the shop to see his ClOt‘k. He there showed them a tin—can in- strument with a bladder on and the magnet in front of it, as his tel- ephone, and it was the only one he showed them. On that visit, TIN CAN B WAS THE BEST IN 1876. 499 and subsequently during the same year, he and Shapley conversed about the telephone under such circumstances that if Drawbaugh had had anything better than the tin can for them, it is absolutely certain that he would have shown it. He never did, and he never claimed to Mr. Shapley that he had anything better or had ever done anything which would entitle him and not Mr. Bell to be considered the first inventor. B as then shown them was, so far as can be seen, in working condition. Both Shapley and Landis expressly stated that B had a membrane on and an electro—magnet to it (b'hapley, ans. 24, complts, i, 589; Landis, ans. 28, complts, i, 609). Mr. Shapley stated that they were not connected with any wires at the time; and that agrees with the description which Drawbangh always gave of the condition of all his apparatus. Mr. Landis made an nnnuww- nv]1;n1/\ 4-1“, .JAL‘M‘Jnutfi “an“..mtn" “LLAmMAMJ L.‘ nA..~+....,. (m J. H. Reneker, p. 431, supra, in the summer of 1875 saw and used A only, as if it were the best Drawbaugh had. Henry S, Rupp, a man of education and intelligence, and an old friend- of Drawbaugh’s, went to Drawbaugh’s shop in the fall of 1877, and there saw what he recognized as the tin—can instrument B, and that there was a hog’s bladder over one end, and Drawbaugh told him that parchment would be better than bladder. Mr. Rnpp listened at it while Drawbaugh talked into some transmitter that Mr. Rupp did not see, but he could not understand well What was said. Drawbaugh does not ventureto contradict this. Now the Court will observe that here are five witnesses who spe- cifically swear that during the time after Drawbaugh says he had constructed D and E, which were obviously and, according to his own sworn statements, to supersede the tin can, they actually had shown to them, as though it was the best he had, the tin can B, and this fact Drawhaugh (lees not venture to contradict. In addition to the specific, distinct, intentional and deliberate statements on the part of Springer and Moore, the defendants" witnesses, there are the statements to the same general effect, the dates proved, undoubtedly W.__.. 498 BRIEF FOR COMPLAINANTS ON FINAL HEARING. 1875, and may have been any time up to the spling or summer of 1877. Thomas Draper, p. 427, supra, swore that he heard through C and I under circumstances which make it certain that the apparatus ex- hibited was the best Drawbaugh had. The defendants wanted it to appear that that was in 1874. It is certain that it was in 1877. Wilson N. xiiillei', p. 305, supra. His testimony, when the true date given by his books is applied to it, proves. that in the winter of 1877—8 A was the instrument Drawbangh was showing as his best. That disproves T) and E, and shows the Worthlessness of an unsup- ported memory. Elt’ Graybill, p. 435, supra. Pretends that he thought of ad— vancing money to Drawbaugh. ' His story is absurd, but part of it is that in the fall of 1875 he talked throucrh some machine whi‘ mumsses Visits are proved to nave taKen place disproves the exist- ence of D and E at any time before the date of the Bell patent, and exactly agrees with the repeated statement of Drawbaugh that he had never done enough to antedate Bell, and with his depOsition, in which he is unwilling to SWear that D and E Were made before the date of the Bell patent. The defendants cannot escape from this result unless upon the ground that their witnesses are to be judged by their conformity to an alleged and assumed story ; and the attempt to get rid of these witnesses carries with it their whole fabrie,—-— dis- credits their whole record. Oomplm'nants’ witnesses who prove that the tin can B was the best thing in 1876. ——In October, 1876, R. E. Shapley and I. D. Lan- dis, purposing to put some money in Drawbaugh’s inventions, went to the shop to see his clerk. He there showed them a tin—can in- strument with a bladder on and the magnet in front of it, as his tel— ephone, and it was the only one he showed them. On that visit, TIN CAN B WAS THE BEST IN 1876. 499 and subsequently during the same year, he and Shapley conversed about the telephone under such circumstances that if Drawbaugh had had anything better than the tin can for them, it is absolutely certain that he would have shown it. He never did, and he never claimed to Mr. Shapley that he had anything better or had ever done anything which would entitle him and“ not Mr. Bell to be considered the first inventor. B as then shown them was, so far as can be seen, in Working condition. Both Shapley and Landis expressly stated that B had a membrane on and an electro-magnet to it (Shapley, ans. 24, complts, i, 589; Landis, ans. 28, complts, i, 609). Mr. Shapley stated that they were not connected with any wires at the time; and that agrees with the description which Drawbaugh always gave of the condition of all his apparatus. Mr. Laudis made an answer which the defendants apparently attempted to construe as meaning that the instrument itself was not in working condition. Mr. Landis’s statement was that the apparatus was not connected up with wires and not in working order in that sense. His distinct description was, that it had had the bladder and the magnet (see ans. 28—9, p. 608, and X-ans. 40, p. 610). Drawbaugh has not ven- tured to contradict this testimony. Henry S. Rupp, a man of education and intelligence, and an old friend of Drawbaugh’s, went to Drawbaugh’s shop in the fall of 1877, and there saw what he recognized as the tin-can instrument B, and that there was a hog’s bladder over one end, and Drawbaugh told him that parchment would he better than bladder. Mr. Rupp listened at it while Drawbaugh talked into some transmitter that Mr. Rupp did not see, but he could not understand well what was said. Drawbaugh does not venturerto contradict this. Now the Court will observe that here are five witnesses Who spe- cifically swear that during the time afterDrawbaugh says he had constructed D and E, which were obviously and, according to his own sworn statements, to supersede the tin can, they actually had shown to them, as though it was the best he had, the tin can B, and this fact Drawbaugh does not venture to contradict. In addition to the specific, distinct, intentional and deliberate statements on the part of Springer and Moore, the defendants’ witnesses, there are the statements to the same general effect, the dates proved, undoubtedly *, 7k V‘“? ”a, 500 BRIEF FOR COMPLAINANTS ON FINAL HEARING. against the hopes of the defendants, however, of Musser, Baylor and other witnesses named. There are about as many witnesses who swear positively and without contradiction from Drawbaugh to the specific fact that they used or saw B with a membrane on at a period which entirely disproves D and E as there are who swear to the use of D and E before the Bell patent. One of these wit— nesses, Springer, is stronger than any witness brought to support the early date of D and E, because he did not go there until April, 1876, and unless his story about the use of B is to be taken as true, his Whole deposition is an arrant lie, Without any foundation; and he is the defendants’ witness, and gave this testimony on direct examination. Now, in that condition) of things, and after the most of this testimony for the defendants had been put in, Drawhaugh going upon the stand refused to contradict Springer, and declined to say that he even believed or was willing to assert any recollection thatD and E existed in 1875. When we add to them the proof from Shapley, Landis, Rupp. together with the proof of his re- peated declarations that he had no speaking telephone before Mr. Bell, he even then did not dare to go on the witness stand to assert that these two instruments, proved to he the earliest real talking in- struments, were made before Mr. Bell. If the burden were on the complainants, such a condition of proof would sustain it. It is the merest folly to pretend that there is any evidence worth considering in this case to make the Court believe that which the claimant will not even assert is believed in as the turning point of this case. The magnets of D and E were not made in 1875. —-Harmon K. Drawbaugh, the alleged maker of D and E, said (p. 179) :— “ (2.131. Who made the curled magnets for those two machines (D and E), if you know? “A. He (Daniel Drawbaugh) made the one for the first one and forged it and shaped it, and 1 made the other, I think; there were several—— quite a number of them made ; and I know that Fettrow made a couple, but 1 don’t know which of them were used.” Adistinct statement 011 direct examination that Fettrow made some atpthe origin, though the witness don’t know which were selected. Daniel has told us that they were never changed, so there can be no suggestion of a second set (defts, ii, 1107, ans. 1700). PROOFS AGAINST D AND E. —0APT. MOORE. 501 This was not a chance answer; the defendants’ counsel elsewhere assumed that Fettrow forged magnets for them when they were first made (complts, ii, 1450, x—int. 4:01). The defendants put into the case a copy of Fettrow’s book account with Drawbaugh down to April 1, 1876 ; he swore to it as contain- ing everything he furnished, and it contains items of five and ten cents (defts, iv, exhibits, p. 6). There is no charge for magnets, nor even for a piece of steel which could have been used for magnets, from April 1, 1874, to the end of the account, April 1, 1876. This is the only piece of written proof which found its way into the case as to the source of any of the materials used. Disproof of D and E from the Axle Company. iVe have already referred to the fact that D and E are alleged by the defendants to have appeared when the Axle Company began, February, 1875, but only asserted by Drawbangh to hive existed at some time before it closed in the fall of 1876. The Axle Company ought to furnish conclusive evidence, because the invention and the instruments were of so startling a character that the members of that company would have seen them and used them ifythey existed; if their attention was in any way called to the subject it would have been called to these particular instruments and arrested by talking with them; for if they were what they are now, it would take no more time or trouble to talk through tbem than to talk about them. But the testimony of the Axle Company, and of the persons con- nected with it, as found in the defendants’ record, is so far below what such instruments would lead to, and furnishes so much and such positive and conclusive facts which could not have existed it' D and E had been there, that their depositions alone disprove the ex- istence of those instruments. No. 97. J. A. filoore, defts, i, 610; app. 20L—There are few witnesses whose character and position enable them to be, and, who in fact, are, of such value to the Court in this case as Capt. Moore. He has known Drawbaugh since 1870, and has lived within a couple of miles of him. He has been the principal and the chief owner of an establishment near Eberly’s Mills, known as the Soldiers’ Orphan School, with between two and three buud;ed pupils. Only two men 502 BRIEF FOR COMPLAINANTS ON FINAL HEARING. of education are produced by the defendants in their record as hav- ing any knowledge about Drawbaugh’s alleged instruments; they are Prof. Heiges ((1. V. p. 269, supra) and Capt. Moore. At the beginning of 1875 he sold out his interest in the school (which he bought back a couple of years afterwards), and, being then well provide with ready cash, became partner in the Axle Company, so called, which proposed to manufacture a patent conical axle, invented and. patented by his next—door neighbor and father- iu—law, Jacob Kline. Their general knowledge of Drawbaugh’s skill as a mechanic was such that they determined, after some trials else— where, that they would transfer their business to Drawbaugh’s shop, have him get up all their special tools and machinery, and. take charge of manufacturing the axles; and this was done. Plainly, Drawbaugh was a man who received due consideration from Capt. Moore. The Axle Campany’s business began as early as March, 1875. By the close of the year it appeared to be somewhat un- profitable, aud two members retired Feb. ‘29, 1876, leaving‘two of them, Capt. Moore and Grove, to carry on the business. They together, chiefly Moore, did carry on the business during that sum- mer and into the fall. Fettrow, the blacksmith, has a charge against them for blacksmithiug Work done for them as late as September, 1876. Nov. 18, 1876, Grove transferred his interest to Moore upon Moore’s undertaking to pay the debts out of the proceeds. Moore was the only moneyed man of the concern. He says that be practically took the whole into his hands in the spring of 1876, and was sec- retary and treasurer of the association from the outset. The period of this company —from the beginning of 1875 to the latter palt of 1876 ——is the most important, indeed, we might say, the only period that is important in this case. No apparatus alleged to have existed before 1875 can possibly be termed a practical in— strument. It is alleged that D and E were made during the month before the Axle Company began, and no one can deny that they are, for the purpose of the patent law at least, entitled to be called practical instruments. They are rather feeble, but for a line from room to room in a building, which was all that Drawbaugh had, they would enable an attentive listener to carry on conversation quite well. It is a part of the story of the defendants that before the PROOFS AGAINST D AND E.—OAPT. MOORE. 503 time when the Axle Company completed its operations Drawbaugh had completed the highly organized microphones L and M and Cr and O, and the magnetos L and M (for the boxes of L and M con- tain magnetos and microphones both), and had substantially, if not entirely, completed H (p. 182. supra). During the period of the Axle Company, also, Mr. Bell took his patent and became famous all over the World in consequence of the publicity given to his inven- tion by his exhibition of it at the Centennial. The construction of such instruments as D and E, L and M, G, O, H, and the attain- ment of such results as those instruments could yield, at the end of a dozen years of experiment, — for such is‘ the story they tell, —- and then the knowledge which Drawbaugh obtained in the summer of 1876 of Mr. Bell’s fame and reputation, with the feeling which that knowledge must have excited in him,-—if their story be true,— that another was gaining the credit for what he had done and done far better, years before, must have made Draxvhangh — if such were the facts — proclaim his own merits and his disappointment to every- body, and excite in him a desire to right him111'l'lttl, pp. 944—5). Defendants called the Heisley family, who swore that in 1874 , they bored pipe for their own spring with a certain anger; that they used it again in March, 1875; and one of them said that as soon as they got through, Kissinger borrowed the auger. (The others did not know of any such connection.) Keller, owner of the auger, confirmed this. Cowens and Swartz, two neighbors of Kissinger, proved that Cowens put pipes on his farm in April, 1875, and Cowens testified that he went to look at Kissinger boring logs when he was preparing for his own work; he liked the logs, but, having no suitable sticks, he nailed together hemlock hoards. Thereupen the defendants built up a structure; they had witnesses who swore to pipe boring in 1875 and 1876; to the ram in 1876 and 1877, and the first part of 1878. This proof showed the same kind of inconsistencies as the talking-machine testimony. Men 528 BRIEF FOR COMPLAINANTS ON FINAL HEARING. swore that the ram was working at times when others swore that it had been out of order for months, etc., etc., but they also had men who fixed their dates by moving away and never returning. In all there were over fifty witnesses ; but all of them were mere bystanders. They proved by a record that a local cemetery association proposed to put in a ram in 1877, and tried to have men swear (and some appeared to) that this was in consequence of seeing Kissinger’s-‘ram; but their witness Wise, superintendent of the cemetery, had to admit that there was no connection between the two; he had urged the ram years before. Then we began. We called witnesses to memory, but they were the least important. The Heisleys had a reamer made when they used the anger the second time; we found the reamer, and the black— smith who made it; and he and his books showed that it was made in March, 1876, and all the Heisley family came back and acknowl- edged their error, and so did Keller. Co wens came back and said that the inspection of Kis:inger’s work was when he (Cowens) relaid his pipes some years after 1875, and he remembered seeing Wagner stone up the pit when the ram was originally put in. “Te called Draper’s wife, whovisited the farm with him once only, and in the fall ot'1877, and she said she thought there was no ram there; his daughter, who visited the farm only once and in the fall of 1878, and they were putting the ram in then (complts, iii, 1880—6). This was confirmed by Foulk (27)., 1848), former agent for Draper (who lived in Delaware), and especially by H. J. Eppler (2175, complts, iii). Eppler became Draper’s agent for the first time in the spring of 1877, and continued to be his agent until 1882. He swears that there was no ram in in the spring of 1877 ; that after that Draper and Kissinger stopped at his store and said they were going to order it, and that in December, 1877, he saw trees cut on the place, and, going to com- plain about it, found that they were for the ram. He produced the following letter, written in December, 1877, by Mr. Draper, and referring to the ram in terms absolutely inconsistent with the story that it was in at that time (complts, iii, 2178) :— THE DRAPER—DISSINGER HYDRAULIC RAM. 529 MAGNOLIA, Decm. 18, 1877. MR. HERMAN EPPLER: Dear Sir, —- Inelosed I return the Agreement for Kissinger, with the stock claus intirely left out. The understanding between him and me was, that I was to find one half the young stock and one half the corn to feed them. My only object was too feed the grain on the farm so as to improve it. But if Kissinger don’t like that, all right with me; and if He Won’t sign this agreement, He can stay under the old agreement and pay a certain Rint; and if he don’t like that, I think the Farm can be Rented to Esqr. Foulk’s son in law, Mr. Wallace. Kissinger could pay all his Rents in improvements if he would. The Ram to throw up the water he was to put in; and the Barn wants repairing. There needs a back Poarch & smoke house And Privy. He could haul the stone, do the carpenter Work, and change around so as to have but little money to pay, but I must have my rents in some way. I cant afford to keep the property and get nothing for it. I think I am easy satisfied as anybody could be, but must have my rents somehow. Write to me at once and let me here what he does. The calculation is now that my vessel will go to Philadelphia next trip. If she does you may look for the Oysters about the mid- dle of next week. We are all well as usual. Ever Truly, THOMAS DRAPER. (The italics of course are our own.) Draper has since been called again by the defendants, but has not denied the letter nor ofered to explain it. On the contrary, be ad- mitted on cross-examination that the ram was put in either when he visited with his wife, in the fall of 1877, or with his daughter in the fall of 1878 (defts, snrrejoinder, 183). But even here he prevari- cated, for in a Voluntary letter to complainants’ counsel five weeks before, he wrote: "I feel sure that [the ram] was not put in until 1875” (defts, surrejoinder, 253). The pipe for the ram has its date positively proved by the bill and Drnwhaugh’s order, and the railroad books. There is no at- tempt to prove that any other pipe was ever taken to that place. Two hundred feet of pipe could be easily traced; and Draper, who paid for it, does not pretend that he ever paid for two lots. All this, of course, absolutely proves that it was in the fall of 1878 that the ram was put in. New, whatever be the date of ordering the ram, the fact about the Heisley auger and the fact about the 530 BRIEF FOR COMPLAINANTS ON FINAL HEARING. date of putting in the ram overturn witnesses of the same sort as those called for the talking machine. The date of ordering is not left in doubt. Draper, recalled by defendants (p. 165 surrbtl), admits practically that the ram was not put in until 1878, but sticks to the story of ordering it in 1874. That he first swore to not over one season’s distance between the two dates, and that the defendants deliberately, with Drawbaugh’s con- currence, adopted the view that they could not go much beyond that, destroys this new notion of four years’ interval. Besides that, KiSsinger, Zimmerman and Eppler swear positively to 1877, and Drawhaugh, who knows, will not go on the witness stand to contradict them. At some time, Drawbaugh left with Eli Wise, at Marysville, a bill against Kissinger for the ram. lVise was produced to swear that this was in 1877 ; and he then testified that he handed the ball back to Drawbwugh. Drawhaugh neither produces the bill nor his boo/t: account, and does not testify, pursuing the same course that he did about the telephone. Wise, recalled by us, said that he was mis- taken, and the bill came in a later year. Draper, on taking the stand again, came with a letter from Kissin- ger dated May 30, 1875, in which Kissinger tells him that terra- cotta pipe will not do to carry the water up hill. Was this for the ram? Draper admits that he and Kissinger had talked about other means than the mm, but says that all such talk was when Kissinger lived on the place many years before. He left it in the spring of 1870, and moved back in the spring of 1874. Draper’s story about this letter and the matter connected with it are found to be self-contradictory. But besides that, Kissinger, called again, swears that the pipe of the letter was to run water from a certain spring by gravity. If true, this throws the ordering of the ram to a later date. Whoreupon Cowens and Swartz, substantial farmers, who had previously testified for the defence, swear that in the spring of 1875 Draper talked with one ofthem, and Kissinger with the other, about the gravity supply, and said in effect that they meant to use that. Then came an act to which nothing but conscious desperation could have driven the defence. One of the defendants’ counsel, Mr. THE DRAPER—KISSINGER HYDRAULIC RAM. 531 M. Church, their witness hunter, Squire Fenn, of Marysville, an old friend of Kissinger, and Draper, his old landlord, went two hundred miles to see Kissinger. They profess that thisjourneg/ was merely to get Kissinger to acknowledge the handwriting of this letter, though they not only had Draper produce the letter, but had Fenn swear to the handwriting, which nobody denied. Then they put Church and Fenn on the stand to swear that Kiss singer at that interview admitted that the pipes of the letter were for the ram. But it appeared that they really succeeded at that interview in ex- citing Kissinger to an anger quite justifiable, and then (though they pretend that at the particular instant he suddenly cooled down, only to become angry again at once) by putting questions to him, probably, now about the pipes which were actually bought and used for the ram in 1878, and now about the pipes of the letter of 1875, they may have led him to say (so they swear) that " them pipes” were for the ram. Draper testified that Kissinger admitted this, but on a second question said that “at least” he understood so from one answer Kis- singer made to a question which he THINKS Mr. C’hurch put to him. Finally, after much insistence, we found that they had got Kissinger to sign a written statement at that interview, and when, after repeated calls, we got it, there was no such statement in it (complts, iii, 2431). It said that Kissinger admitted the handwriting, and particularly re- membered the circumstances detailed in the letter about the pipes and some other matters. But they did notput on paper what it was that he remembered. They called their counsel to swear to what he said he had extract- ed frem our witness in the nature of admissions. They did not call Drawbaugh, who knows thefacts, and has thepapers. It only remains to add that Mr. Kissinger, testifies (complts, i, p. 560), and is not contradicted that he was visited by Drawbaugh and one of his counsel in March, 1882, about this hydraulic ram, gave it as his recollection at that time that it was not put in until 1878, and referred them to the papers at the railway company’s ofice, showing the date of the arrival of the iron pipe for the ram. Thus months before defendants’ surrebuttal was concocted to es- tablish a false date, they had pointed out to:them documentary evi- dence showing the true date. BRIEF FOR COMPLAINANTS ON FINAL HEARING. THE FLOOD-AND-BRIDGE ISSUE. E. B. Hoffman (defts, i, 503) testified about talking machines in 1873 and other years, and, among other things, said on direct examination : — “ Q. 9. Do you recollect a freshet that occurred in that locality some years after the time you have referred to which washed away several bridges on the Yellowbrecches Creek? "A. I do; there was a freshet in 1873, in the latter part of the summer; I can’t remember the exact time; I was 011 the creek at the time; it was/zed away the foot bridge at the mill known as Ditt— ler’s Mill at that time; and also the red bridge up at Hes/6’s.” We attacked this, not. because these things happened in any other year, but because they did not happen at all. If the witness Is as far from the truth about the talking machine as he is about the bridges, he is worthless. There exists in Cumberland County a bridge well known as the red bridge at “Hake’s”; it is not on the Yellowbreeches, but on the Conodeguoinet, six or seven miles away, and was not washed away in 1873, but was carried away in 1881 by the ice. On the Yellowbreeches, the first bridge above Drawbaugh’s shop, a mile or two distant, is " Heck’s” bridge. That bridge, however, is not red, never has been, but is'whitewashed, is still standing, and has not been washed away for at least twenty years. This was proved by the county records (complts, ii, 929). The Ditlow bridge was not washed away in the summer of 1873 ; it was carried away in 1871, and again in the spring of 1875. In the summer of 1873 there was a freshet which carried away the gang plank that led from the York County side up to the Ditlow bridge, but did no injury to the bridge, and a temporary plank was put up to replace this by the neighboring farmer a day or two after the flood subsided, and the old gangway was hauled back and put up, by three quarters of a day’s work of two men, a month or two afterwards. These facts were brought out by the evidence of complainants upon the subject, the very voluminous evidence afterwards introduced by the defendants upon the question of the freshet of 1873, and by THE. FLOOD—AND—BRIDGE ISSUE. 533 the complainants’ evidence in rejoinder. They were particularly proved by the explicit testimony on cross-examination of the farmer and of the bridge carpenter, called by the defendants, and by the bridge supervisor and his books, called and put in evidence by us (see defts, iii, surrbtl, pp. 450, 453, 460, 967; complts, rejoinder, 1946). The purpose of this evidence on the part of complainants was not to change the date of the alleged visit to any other particular time, because there was no year at which these two bridges were carried away; no time could be found which would fit Hoffman’s story. The purpose was to show that this witness was a worthless reporter of events which he pretended to have had knowledge of at the time. But the light this issue throws on the worthlessness of the defend- ants’ collection of “ memories” is its most instructive part. They first brought to Harrisburg the bridge supervisors and car- penters, or some of them. questioned them, examined their books, and sent them home. They called none. We called all of them with their books. They produced men who swore about that bridge, and several others on the stream, that they saw them go or were at the places a few days afterwards, and there were no bridges there; in short, the story of the talking machine was told again about the bridges. They had over forty witnesses. They did not call any carpenter (except Magonuell, who, on cross- examination, disproved their case about the Ditlow bridge) nor any official, nor any miller from any ofthe mills where the bridges were, nor any farmer on whose lands they abutted (except Spangler, who, on cross-examination, disproved their case), though they had inter- viewed nearly all of them. Every town ofiictal, and every carpen- ter, and every man who pretended to have worked on bridges was against them, except one man, James Shaffer, whose story was proved to be such a mass of falsehood or Wild error that the de- fendants’ counsel formally gave him up 011 the record. But his story was one which admitted of easy verification 0r refutation. Plainly, the defendants took any man who would swear for them, be- cause, if they had subjected his story to the smallest scrutiny which they should have before ofl'ering him to the Court, they would 534- BRIEF FOR COMPLAINANTS ON FINAL HEARING. have rejected him. Yet, on the face of their proofs, he appeared by far their strongest witness, with a story so precise and circum- stantial that it seemed inconceivable that it could be untrue. So complete was our rejoinder that the defendants gave up the contest as to all the bridges except the “ Clover Mill” bridge, which was not mentioned by Hoffman. For that they called sixteen witnes- ses, in surrejoinder some of them relatives of those they came to bolster up. There was no excuse for the failure to call these people duringthe taking of the surrebuttal, nor any imaginable reason for that failure, except the disgraceful reason that they were not at that time pre- pared to tell the story which they now tell; that they did not know or remember those things, and this notwithstanding that the 1873 flood and supposed destruction of bridges had for months previously been the subject of common talk in their neighborhood. In the sin-rejoinder, one of the surrebuttal witnesses, Samuel M. Dcekman (p. 78, surrej.), reappeared to deliver an appendix to his former story, infinitely more particular and circumstantial than the original testimony itself. The most material part of the elaborated story was that Deckman, about a month after the flood, had been invited by one Andrew Schell, now dead, to assist in repairing this Clover Mill bridge, and had declined on account of rheumatism, which, however, did not suffice to prevent Mr. Deckman from utilizing the rainy days at that period for fishing excursions. The Andrew Sohell part of the story is simply a weak attempt to surmount, as to this one of the bridges, the great difficulty which defendants found in the way of establishing the story they wished to establish, as to any of them. They could find witnesses in plenty to knock the bridges down, but no one to know anything about the rebuilding of them. The supervisors, whose duties were to see to the repairing or rebuilding of the bridges when they needed it, knew nothing to the purpose, and their accounts showed nothing calcu- lated to give defendants the least comfort. Had the Clover Mill bridge, in fact, been carried away in 1873, and subsequently repaired, defendants without difficulty could have produced living witnesses to the fact; but as it is not true, they were compelied to devolve the task upon a dead man. THE FLOOD—AND—BRIDGE ISSUE. 535 The falsity of the story is shown by the testimony and the book of complainants’ witness, Henry M. Bitnor (p. 1929, rejr. and p. 2349, complts, closing proofs.) Mr. Bitner was supervisor in the year 1873 of that portion of the township in which the Clover Mill and the Fulling Mill bridges are; and he testified very positively that during that year neither of those bridges was carried away, and that he had not during his term of office rebuilt or repaired any bridge over the Yt-llowbreeches Creek. He produces the book of account which he kept of the work done during his year of office, and says that it contains an account of all the Work dine by or for-him during that year, There is not in the book any account which even the ingenuity of defendants’ counsel and agents has been able to construe as referring to any such considerable work as the rebuilding of a bridge or bridges over the Yellowbreeches Creek. It contains, however, an item which shows the falsity of this eleventh-hour story about the bridge having been repaired in the fall of 1873 by the dead man, Andrew Schell. Audrer Schell’s account with the supervisor, Mr. Bitner, appears on the twelfth page of the book and amounts to just $3.50. That, Mr. Bitner says, was for a little work done by Schell, during the year, on the repairing of roads or road bridges. How completely the item demonstrates the falsity of defendants’ surrcjoindcr story appears from Samuel M. Deckmau’s account of the damage which he says was done to the Clover Mill bridge by the flood of 1873. He says, in surlstance, that the whole York County side of the bridge was carried away; that of two piers in the stream, one was carried away, and one only left standing; and that such parts of the stringers and flooring of the bridge as were not actually carried away, were swept off the piers and secured only by being chained to the Cumberland County bank (x 72—80, 173—178, 179). How much of this damage could be repaired for $3.50? Mr. Bitner’s book is conclusive proof that the story about this Clover Mill bridge having been carried away by the flood and repaired by Mr. Andrew Schell in the fall of 1873 is simply a falsehood; and it only remains to say that the defendants undertook to establish this falsehood after they had interviewed Mr. Bimer, and after 1117‘. Bimer’s book /zad been in their possession. 536 BRIEF FOR COMPLAINANTS ON FINAL HEARING. * They endeavored to get over the difficulty by insinuating that Mr. Bituer during his term of office was not in the habit of personally attending to his duties, lot the work out by contract, and that a bridge mfg/rt have been repaired without his knowledge. But even if it could be supposed thatsueh a work would be undertaken by any private citizen without the supervisor’s foreknowledge and consent, it is simply preposterous to suppose that Mr. Bitner did not acquire knowledge of the work either while it was being done, or after it was done, and that it did not figure in his official accounts. Moreover, if Andrew Schell had attended to the repairing ofthe bridge, he certainly would not have done the work single handed. The labor of a num- ber of men would be required for such a task, and defendants Would have had no difficulty in finding and producing as witnesses persons who had participated in the rebuilding of the bridge at that time. In this connection it may be noted that complainants were able to find and produce five men who helped to repair this same bridge in June, 1875, after it had been swvept away by an ice flood in the spring of that; year, together with the books of the supervisor, of the carpenter, and the lumber bills. In this flood-and-bridge issue the defendant, magnified their defeat -by unnecessarily enlarging the issue. To prove that the Clover Mill, or the Fulling Mill. or the Liberty Forge bridge, or all of them, were carried away by the flood, was not proof that the Etter & Shanklin bridge shared the same fate, and the question as to whether these additional bridges were or Were not washed away by that flood became utterly immat' rial after defendants had, by their own proofs, shown that the Etter & Shanklin bridge was not washed away. Nevertheless, they persisted in assuming this unne- cessary burden, and the only result has been that of giVing complain- ants an opportunity to furnish a most complete demonstration of the utter worthlessness of just that kind of manufactured testimony upon which defendants’ case, as to the main, the talking—machine issue, entirely rests.