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 . . . . . . . .

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

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.

Autobiography of Drawbaugh
Axle 00.. ..238, 259, 260, 450, 501

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

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

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

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

Faucet Company. See Drawbauqh
Manufacturing Company. . ...237—240
Interference. ..195, 224
Molasses...... ......237, 240

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

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.

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

Landis, I. D...............203, 205, 498
Landis, 0. A

Lee, J. F

Leonard, George..... ..........294, 351
Lloyd, Isaac...............207, 208, 280

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 ..... ..

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

and qtnckantt ﬁrm.

g face of mum

Itine and Driver for running Millstone.

Mnnyin use

()0

oopER.-Alitﬂ'a

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.

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<es faucets.
When David Hauck’s deposition was taken, in May, 1879, Draw—
baugh and his counsel, Mr. Jacobs, one of the counsel and promoters
in this case, thought it would be of advantage if they could make
David Hauck admit on the witness stand that Drawbaugh was a
great inventor, and so, having had him testify that Drawbaugh was
free in communicating inventions to him, they asked him the
question. He replied in substance that he considered him merely
an imitator or mere improver upon other men’s ideas and named
several contrivances which justiﬁed that remark. The next questions
put by Drawbangh and his counsel stated the best coutrivances of
Drawbangh they could think of to compel the admission, but he
still denied that Drawbaugh was a meritorious inventor. During
all (5712's Hauclc did not mention. the telephone. Drawbaug/L did not
suggest it, yet Hauck worked alongside of him in Drawbaugh’s shop

in 1873—4, and somewhat afterwards, knew of his inventions, par-
ticularly those relating to electricity, and had introduced him to the
telegraph ofﬁce to have his key tried (p. 224, infra).

Then Hauck’s counsel asked Drawbaugh :—

"Since 1866 what machines have you conceived and perfected
that have worked satisﬁictorily '2”

In reply to which Drawbaugh enumerated a number, some of
which he said he was still working on, but he did not include the
telephone in the list. A week earlier, Drawbaugh’s brother, Henry
F. Drawbangh, who had testiﬁed that he had been a constant fre-
quenter of Dr:.uvbailgll’s shop for ten years, was asked whether
Daniel was not a boaster, and then 2 —

22 BELL v. DRAWBAUGH.

" Please enumerate all the machines that you have seen him
make of his own invention that Worked satisfactorily.”

VVhereupon he enumerated ﬁfteen contrivances. But these two
lists, like the list Drawbaugh printed and published in 1874—5, con-
tain no telephone. Now Henry Drawbaugh swears that nearly
every time he was there from 1872 to 1880, Daniel was working
on talking machines, and that he spent hours and hours aiding him.
These depositions were shown to Daniel Drawbaugh on the witness
stand; he neither denied them nor offered any explanation. In
David Hauck’s deposition We showed that we intended to make this
use of them. They have not put either Daniel or Henry on the
stand to eXplain (p. 225, inﬁa).

Dr. Moﬁtt and U/zellz's disprove the story. 1878, 1879.—Dr.
Motﬁtt, a dentist of Harrisburg, had known Drawbaugh for twenty-
ﬁve years, and from a period a good while before 1870 had been a
frequenter of Drawbaugh’s shop, attracted there, he says, partly for
ﬁshing in the run, and partly on account of the interest he felt in
Drawbaugh's numerous inventions. He, himself, was an inventor-
and patentee. Called as a witness for the defence, he testiﬁed that
his ﬁrst knowledge of the telephone was obtained by listening at A
in Drawbaugh's shop. He thinks this was in 1843, but the allega-
tion is that A was not made before 1874.

Yet the defendants wish the Court to believe that Drawbangh had
speaking telephones at his shop, and was showing them to every-
body for seven years before this man heard of them.

In the fall of 1878 be determined to invest seine money in Draw—
baugh’s inventions, and the one which he selected was a then unpat—
ented and untried improvement in molasses faucets. He got E. M.
Chellis, who kept a ninety-nine cent store in Harrisburg, and who
appears to have been a man of rather speculative disposition, to join
him. Mr. Chellis is a director in the defendant corporation, and
one of the principal individual defendants. Before this time Draw-
baugh had been mentioned in the newspapers, in the spring of1878,
as a man who was then engaged in making improvements in tele-
phones. Dr. Moﬂitt told Chellis that Drawbaugh had a telephone
(this was in lhe fall of 1878), and they considered whether there

was anything in it worth taking up. They determined that it was

SUMMARY. 2 3

not worth while to touch it, because to make money out of it Draw-
baugh would ham: to prove prior invention against Bell, and could
not do it. This was told by Motilitt on the witness stand and substan-
tially conﬁrmed by Chellis (pp. 228-232, infra). Yet they want the
Court to believe that it is notorious and certain beyond possibility
of doubt that Drawbaugh can antedate Bell, and that Mofﬁttis one of
the best witnesses to prove it by.

Thercupon Chellis and Moﬂitt agreed to join in the attempt to get
a patent and manufacture a molasses faucet; then afterwards to get
a patent on and manufacture a little Water wheel ; then afterwards,

in 1879, Chellis bought up the electric clock.

After this Drawbaugh asked Chellis to join with him about the
telephone. This was in 1879; it was too late to get a patent on
the " mother invention,” and Drawbahgh of course knew that, but

a patent on any improvements which Drawbangh was engaged on
could be got if they were new. Chellis, who knew all that Motﬁtt
knew, testiﬁes :—

"Q. 13. During any of your earlyconversations with Mr. Draw—
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 cannot antedate Bcll,’
he would say, ‘I don’t know about that, 1 have been working at it a
good while.”

Soliciting Chellis to advance money, the best he could say in 1.879
was that he didn’t know. Does the Court?

Origin off/11's defence.—ln the spring of 1880, Marcus Marx,
Morritz Loth, Simon VVolt', and F. A. chmm had determined to
make a form of telephone devised by Klemm d5 Tisdcl. The Bell
Company had knocked on the head several " prior inventors,” whom
the success of the telephone had as usual created. This new set of
would-be ini'ringcrs were in the market for a new " prior inventor,”
whereupon this happened: Chellis, with Messrs. Hill and Jacobs,
who had been his counsel in the faucet interference, obtained from
Drawbaugh for nothing, three quarters of his pretensions about the
telephone, and innuediately, without spending a cent or expecting

w, New v

24 BELL v. DnAWB AUGH.

to spend anything, turned round and sold them out to these in-
fringers, and pocketed three quarters of the price, $20,000 in money
and an unknown amount of stock. The infringers then proceeded
to organize a company with $5,000,000 capital, with no basis except
these pretensions, three quarters of which had just been given for

'nothing, and caused Drawbaugh to ﬁle an :1p1)li"ation. They pub-

lished in the newspapers that they have got a scheme based 011
Drawbaugh’s claims which oﬂcrs a prospect of unbounded wealth,
and which will result in compelling the Bell Company to "surren—
der all their lines” to these speculators, or else to pay them "a
magniﬁcent tribute”; upon which the Bell Company examined the
man’s history, brought suit, obtained an injunction, and now come
to ﬁnal hearing.

The New York tests.—The answer alleged that instruments
which transmitted good speech between “ distant points ” in 1870—1—
2—3—4 are “ still in existence and capable of successful practical
use.” The fact is that no apparatus alleged to have been made in
those years was tried " between distant points,” or over was capable
of "successful practical use”; and none of them now exist in a.
usable condition.

They produced remains, but no complete apparatus alleged to
have existed during the years speciﬁcally named contains operative
parts enough to transmit a sound. And the only one produced in
working order (A) is a receiver only, and not a complete speaking
apparatus.

Drawbaugh made for the defendants what they call reproductionS,
in which the legitimacy of the most important Working parts rests
substantially on nothing beyond his deposition; and the defendants
caused their patent solicitor, Mr. Benjamin, to try them and then to
swear that they were all " good, full-sized, practical workng speak—
ing electric telephone instruments.” We simply asked him to ” do
it again,” but in the presence of \\itnesses. The defendants selected
their own time, place and conditions, and their own expert ope 'a—
tors; adjusted and used the instruments themselves, except when
some of the complainants’ experts listened from curiosity. But
reporters took down what the defendants’ speaking operator uttered
into the transmitter and what the detetldants’ listening operator sail

SUMMARY. 25

that he heard at the receiver; we printed the two reports in parallel
columns (pp. 161—182, infra).

Results. —-The tests lasted three days. At the outset Mr. Benja-
min (defendants’ expert) stated of the alleged earlier instruments
that all he expected to get was “ a sound, and now and then a word,”

and this describes their whole result with substantial accuracy. If
instruments before Mr. Bell’s patent had produced the same results
as these produced in New York, they would not he a defence in this 0
case (pp. 161—182, infla). i '
Unﬁm'thﬁd reproductions. — But the so-ealled reproductions con-

tained Working parts inconsistent with the remains produced and
with the depositions of all the witnesses who swore to them; every
one of these interpolations is admitted to be a material improvement,
particularly in the case of the most important instrument, the
broken tumbler transmitter F (pp.16'2—177, infy ct) . To the New York
tests the defendants brought also conditions and skill far beyond
those present when (whenever be the date) country farmers spoke
and listened at Drawbaugh’s shop. > 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

.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.

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

“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

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

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

,, .,:_.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's<leZ, 2 Bann. & Ard. 10 (1875), LONGYEAR, J.

" The patent carries With it a presumption of novelty of the

thine patented, and the billtltll of rchutting that presumption is
upon the defendant. In order to d1 ten the patent 011 the ground of
want of novelty, the proof of prior use or previous knowledge must.

be such as to establish the fact clearly and satisfactorily and beyond
a reaso~1able doubt. “here the proofs are contradictory. meie
preponderance is not sufﬁcient to sustain the- allegation. The pre—
ponderance in such case must be such as to rt move all rtetsonable
doubt.”

‘i In “700d v. Cleveland Rolling D7111 00., 4 Fish. 550. 560. Mr.
Justice Swayne said: "Vhen the defence is made, it is the duty of
eoiuts 11nd juries to 0ivc it cﬂeet. But such testimony should be
w<i<_rl1ed with cane, and the defence allowed to plevail only when
the evidence 18 such as to leave no room for- .1 reasonable doubt upon
the subject’”

“In Par/zamv. Am. Buttonhole U ., 4 Fish. 468 482, heard he—
fo1e Mi. Justice StIong and Circuit Judge McKennan, the lam ter , in
delivering the opinion Cbf the Conit, said. ‘Thc evidence must es-
11bl1. h cle1"11ly the piioiity of a completed and useful machine over
the complainants, or it is unavailiug. To doubt upon this point 1s
to resolve it in the negative.”

0077781067» v. Sandro/cg Seal Company, 8 Bann. &Ard. 188 (1878),
V\ ELKER, J. (l5)0).— he t1 station) upon this point is vely c011—
ﬂictinfr; upon the. whole it does nets satisti us that the sale was made
befo1e Au;r 9, 1867. \\ e ale b1ouuht to the conclusion that it was
not. It the evidence, however, raised a doubt, which we think it
dOes not, such doubt, it is Well settled, should be resolved against

120 BRIEF FOR COMPLATNANTS ON FINAL HEARING.

the respondents, upon whom rests the burden of proof. Cofﬁn '1).
()ﬂden, 18 Wall. 120. This rule is founded in justice and good
sense. The patent is prima facie valid. It is a mnniment of title.
He who would overcome it must do so by a clear preponderance of
evidence.”

The United States Stamping Company v. Jewett, 18 Blateh. 469
(1880), BLATCIIFORD, J. “The, suit was on a patent for improved
cuspadores; the defence was prior invention. It was alleged that the
prior inventor reduced the invention to practice by making a cuspa-
dore, several of Whith were sold orgiven away, and used. The ques-
tion turned simply on the date. The witnesses for the defence were
persons of high character, well known as prominent men in Chicago.
Some of them were interested in the case, but there was no doubt
that they meant to tell the truth as they believed it. There were no
direct depositions against them; all the depositions were one way.
The dates rested on memory, but apparently fortiﬁed by assoeiations
which at first sight seemed conelnsive. The derision turned on the
analysis which the Court made of the depositions for the tleteiiee.:111tl
which satisﬁed the Judge that the witnesses were probably mistaken
in their d-ttes, or, at any rate, that the testimony was not sufﬁciently
reliable.

" The evidence on the part of the defendant as to the “reber
structure is very Voluminous. I have examined it with great care,
and the result is that I am not satisﬁed from it that the defendant
has fulﬁlled the necessary obligation of showing beyond any reason—
able doubt that VVeber was prior to Heath. In all the testimony
for the defendant there is not the ﬁxing of a date for the Weber in-
vention by evidence of such a character as makes it impos~ible that
such date should not have been earlier than the date of Heath’s in-
vention. The defendant's witnesses testify from ah~tract memory
of dates, or from some associations in their minds which, on being
tested, prove nnsubstantial and not to be relied on. It would
occupy too much space to discuss the evidence in detail. Some of
the salient features “ill be adverted to.

" Weber, the alleged prior inventor, was an employé in the estab—
lishment of Crerar, Adams & Co., of Chicago. at the time. Mr. J.
McGregor Adams, of that ﬁrm, was the person who ﬁrst brought
before the Court, by an afﬁdavit made by himself, this structure of
VVeber’s. The evidence taken as to this struetnre was taken in con-
sequence of statements made in this afﬁdavit of Mr. Adams. It
now turns out that the statements hazarded from memory in the
‘itiidavit of Mr. Adams were very huge y erroneous. They placed
erents earlier than they turned out to be on investigation. They
did so as to the time when the than of Crerar, Adams & Co. was
formed; as to the time when the Chicago Railway Lantern Com-
pany succeeded it; and as to the time when Weber left his employ.
They were erroneous as to the fact of the making of self-righting

THE PROOF MUST REMOVE ALL DOUBT. 121

spittoons by his ﬁrm prior to the making of the cusprtdore in ques-
tion; as to the fact of the purchasing of self-righting euspadores
from his ﬁrm by the Pullman Palace Car Company, the Cl icago &
Noithwestern Railroad Company, and )Iason,& Co. ; and as to the
witnesses who Would corroborate his statement as to the prior inven--
tion by “Yeber. V

“ These circumstances are alluded to as evincing a tendency on the
part of Mr. Adams, honest and sincere though he may be, to re~
member things which did not occur, and to place events which did
occur at an earlier date than they actually occurred. Such a habit
of mind, in the presence of the atiidavit made by him, and of the fact
that he took an active and zealous part in the procuring of the wit-
nesses wholestit‘ied for the defendant, and of the fact that many of
such witnesses were or had been his etnployes, and of the t'act that
they and others of the witnesses were in a position naturally to re-
spond to his inﬂuence upon their memories in a direction consonant
with his own memory, in a matter which for them had no interest,
but for him had an interest to be measured only by the positiveness
of th‘, assettions in his afﬁdavit— such a habits of mind is to be taken
into consideration, when weighing his own evidence and that of such
other witnesses, as to the date ot the ‘Veber structure. The testi—
mony of Mr. Adams as to the sale of the \Veber cuspadores to any—
body is entirely vague and unreliable. It is not supported by any
written or record evidence or by any testimony 110111 the alleged
purchasers. His dates of events in his testimony are shown to be as
unreliable as his dates in his aﬂ'idavit.

" As to one of the \Veber cuspadorcs which Mr. Adams had in his
house, given to him by Weber. Mr. Ada'ns states, in his testimony,
that he had it in his family as e trly as 1668, probably (he says) the
1st of January, 1560’; and that it was a New-Year’s present to aid
in furnishing a new library, completed in 1867. Mrs. Adams,
his wife, testiﬁes that this \Veber cuspadore was brought to her
house in 1867 or 1868, after the library was completed, and two
years, certainly, before she went to Europe, which was July 12,
12570; that she connected it \Vitn another gift which was received
about the same time, a tire screen, given by Mr. John Dow, the
screen being a cut glass one,'in which the cnspadore was reﬂected ;
that the cuspadore was also reﬂected in a mirror an i in the windows
of a bookcase; and that the mom appearing to be full of cuspadores,
the article was sent into the attic.

“ Miss King, Mrs. Adams’s daughter, who lived in Mr. Adams’s
family tron) 1866 to 1870, says that she saw the \Vebcr cuspadore
there between 1868 and 1670, in the library, where the glass screen
pre~ented by Mr. Dow was at the time. Mr. Dow testiﬁes that he
gave the glass screen to Mrs. Adams at Christmas of 1868. On
cross examination, he was asked what made him sure of that date,
and he said ‘collateral evidence,’ the collateral evidence being that

122 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

the family went abroad in May, 1869, and remained away over a
3 tar, and it could not have been Christmas of 1869. Now it
clearly appears that the Adams family went abroad in July, 1870.
So, the screen must have been given at Christmas of 1869, and the
cuspadore appcared in the house alter the screen did.

“ Mr. Dow attempts to ﬁx another date by association. He says
that in Novernbcr, 180‘“, he took rooms at the Tremont House,
Chicago, and put one of the \Vcbcr cuspadorcs into them. On cross
examination he says that he ﬁrst went to the Tremont House to live
while Mr. Adams \\ as abroad. Then, when he ﬁnds that Mr.
Adams was not, abroad in November, 1869, he says that Mr. Adams
was not abroad when he was living at the Tremont House. Such
testimony proves nothing.

” The two young \Vcbcrs give no reliable data. for ﬁxing a date
earlier than Heath’s inVcntiou. The older \Vehcr is very confused
as to datcs, and gives nothing reliable; and his recollection that he
made the cuspadores six months before the ﬂower stand was made
Would carry the date of theécuspadorcs back to 1566, —an impoSsible
date on all the evidence. Miller gives no adequate reason for any
date he fixes, nor does Meyer.”

iogers v. Beecher, 18 O. G. 793 (1880), WALLACE, J. (793).
"Apatcntee is entitled to the presumption of priority which his
patent affords, and this presumption is only overcome by clear and
satisfactory proof to the contiary. Some of the cases hold that
the defence that the patentee was not the original and ﬁrst inventor
ot'thc patented subject can only pre'ail when shown bcyond any
reasonable doubt. (Crouch v. Spcer at 611., 6 O. G. 187; Hawcs v.
Autisdel, 8 O. G. 685).”

Doubleday V. Baillie, 11 Fed. Rep. 729 (1852), ACIIESON, J.
(734). —— "We adhere to the rule ' that it is not sufﬁcient to raise a
doubt as to the novelity of the plaintiff’s patent; it must be afﬁrm—
atively proved to be old by preponderating and satisfactory proof.’
Tontkins 2). Gage, 2 Fish. 577. But in this instance we think the
evidence of prior use is fully up to this standard, especially in View
of the long and unexplained acquiescence of Root, the patcntce, and
his assignce, Jackson, in the general and notorious use of the pat-
ented devices.”

TIM/yer v. Ifart, 20 Fed. Rep. (393 (June, 1884), COKE, J.—
The complainant admittcd that the defendants had proved that he
had made and used the thing patented, which was an improvement in
a necktie pin. eleven months prior to the ﬁling of the application _of
the patent sued on.» The patentee then undertook toprove his inven-
tion back of that. The Court declared that in any case where parol
evidence was relied on to carry back an invention beyond a date
furnished by records, the evidence must leave the case free from any
doubt, and commented on the reasons for that rule, one of which

THE PROOF MUST REMOVE ALL DOUBT. 123

“as t111t the means of ascertaining the fact frener111llylty chieﬂy
within the control of the party alleging it. Then approved the rule
requiring the case to he made f11e no: 11 doubt. It then st.1ted that
the evidence adduced, when compared with other facts, which
there could be no doubt about, although by no means explained
away or disproved, still was inVolved in so 111mb doubt, or rather
left so many matters involved in such doubt, that the lourt could not
feel that the story as told was indubitably true. And thus, not 1111—
dertaking to say that what w as asserted was dispreov I, it rejected the
whole evidence bee cause it was shaken on so many points tho the
001111: felt it could not rely upon it as a whole. It said (p. (193) :—

" 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. \Vhere interests so vital are at stake. where intervening
years have made perfect accuracy welluigh impossible, where an
event, not deemed important at the time, has been crowded from the
memory and Ol)S(‘lll‘t d by the ever- '111'yiug incidents ot an active life,
it is not difﬁcult to imagine that even an honest man may be led
erroneously to persuade himself that the fact accords with his inclina—
tion concerning it.

"The evidence of prior invention is usually entirely within the
control of the party asserting it; and so wide is the opportunity for
deception, altitice or mistake, th at the author iticsare almost 11111111—
mous in holding that it must be established by proot, cleat, positive
and unequivocal; nothing must be left to speculation 111' conjecture.”

The Court then referred to and quoted from Ooﬁln v. Ogden, that
every reasonable doubt should be resolved against the party alleging,
and quoted from Wood v. Cleveland Rolling Mill 00., 1111111101013
v. U111lelwood,thc pass sages 11 ‘r11>1d1' 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 u<e of exhibit

Fin its original condition up to the Very last. thethcrthe wit-

nesses were mistaken or not about their dates is another question ;
but that the use of exhibit F was continuous from beginning to end
is certainly established. -

But Drawbaugh himselt' does not prove, he does not even assert, the
existence of the original of “F reproduced ” at any time before the
Bell patent. He swears expressly that the present exhibit, "F repro-
duced,” has been made " under my direction, for the purpose of put-
ting in evidence in this suit” (ans. 650, detts, ii, p. 905). As to
the alleged double-rod original, his testimony is merely that he
made it, but without (my statement of lime. Nor is he even asked
to name a time when he ever made it; his whole testimony that
refers in any way to the date is the following (det’ts, ii, 798) :—

"Q. 115. In what respect does it differ from the original instru—

ment F, as ﬁrst used by you?
"A. It diﬁ‘ers in this respect; in the reproduction—I used a.

17 2 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

yoke, represented in the drawing of the reproduction FF, the origi-
nal having only one post, or bar, or rod, instead of a yoke, as shown
in exhibit F drawing there we1e 111od1t101t1011sThe mouthpiece
of the original was large, with a largel opening, like that on exhibit
F. I had made dificrent mouthpieees —-moditied them - made
them of different shapes. I cant give the diﬁ'eient modiﬁcations;
the ﬁrst ones we1e much larger baud higher,—higher 110111 the
diaphmgm.”
Defts, ii, 906. '—

"Q. 656. How does exhibit reproduced F instrument compare
with the old tumbler instrument, as the latter existed prior to 1871,
when you used it in connection with instlument C?

“A. It compares exactly, with the exception of a modiﬁcation;
I had it in two forms, ——~that is, in one I had two metal posts or a
Continued stirrup, and in another I had one as represented partly in
exhibit F drawing; it compares in every other respect.

“Q. 657. Am I to understand you that it is an accu'ate repro—
duction of one of the two original modiﬁcations or forms?

<<A. Yes, sir.”

Here, again, is a statement that an instrument like the reproduc-
tion did not exist before 1871, but no statement when it did. Plainly,
therefore, Drawbangh did not state, and did not mean to state, any
date for the double stirrup form embodied in “ F reproduced.” The
defendants knew that he did not. That is not all.

The double-rod instrument would necessarily supersede the form
shown in F; and such is the tenor of Drawbaugh’s own testimony.
Since, therefore, F is sworn to by the witnesses for the defence as in
use as late as 1876, it is certain, if any reliance is to be placed upon that
class of testimony, that the original of “ F reproduced,” if ever made,
was made afterwards. The defendants, therefore, while pretending
to make a test, have suppressed all trial of the instrument sworn to
and offered an instrument. which they know did not- exist before the
date of the Bell patent, if it ever existed. They recognized the
necessity, and refused the real trial; that is enough for us.

But there is another difﬁculty. What has become of the origina1
of the “ F reproduced,” if it ever existed? There is no difﬁculty in

producing the original F itself: that has not perished; but not one

of the original parts of the so—called “ F reproduced” is to be found
anywhere. The entire apparatus is new, and made purely from
Drawbaugh’s memory. No part of the original F could have been

"F REPRODUCED” Is A FALSEHOOD. 173

used in an apparatus like “F reproduced.” The cover of F has only
one hole in it for the suspending wire (the other slants, and is for
the conducting wire); therefore that cover never could have been

used with two rods. The upper plate has a notch in its edge, that
it might not touch the suspending wire at that point; and its diam—
eter is the same as that of the lower plate, thus demonstrating that
the apparatus had no powder cup into which the upper plate entered,
as in the " reproduced F.” Moreover the plates of F are so near
the size of the tumbler that there is no room for a box outside of
them.

Lower Plate. Upper Plate.

The rod is soldered to the under side of the plate, so that plate
could not have been laid in the bottom of the box; and the rivet
which Drawbaugh describes, and which is essential to pass the cur-
rent, could not have existed for the plate of F, because there is no
rivet hole in the plate. '

So that nothing that could have been used to make up the original
of " F/reprodueed ” now exists. The testimony is that up to the last
the apparatus, whatever it was, had the broken tumbler as one of its
parts. Drawbaugh’s story is that be constructed a new apparatus
after he had experimented successfully with 14‘, containing all the im-
provements which "F reproduced” exhibits, and yet (if he is to be be—
lieved) he did not put that new apparatus into a new case, but con-
tinued to use the same old broken tumbler, which remains up to the last
in use (defts, ii, 803). Is it to be believed that Drawbaugh, a skilful
workman, having an apparatus of transcendent interest, whose value
be perfectly appreciated, with which intelligible conversation Was
maintained between farmers, six-year-old children, and women, in
a noisy running factory, would continue to use so crude an instru-
ment as exhibit F for nine years, or, that having improved it by addi-

174 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

tions, that he would have continued to'use that broken tumbler asthe
casket for this priceless jewel? It is certainly not true that when-
ever F was made it was ever modiﬁed by any subsequent alteration;
and so all the witnesses agree, except Drawbaugh, who knew the
necessity of the alterations, in order to transmit a word.

That the original F, or anything like it, was not only incapable of
doing What Drawbaugh and his witnesses swear he did, but was in—
capable of transmitting anything, is demonstrated by the reasons
given in the testimony of Mr. Pope and Prof. 'Cross. Whether it
could or not is a pure question of fact. The defendants have the
remains of the original apparatus. They could reproduce it with
new similar parts, or use the old ones, and subject it to trial. They
were challenged to do so by the testimony of these gentlemen who
pointed out, ﬁrst, the great superiority of “F reproduced,” to the
original, the fact that the trial was made by the aid of perfect tel-
ephones for adjusting, and the great advantage which the trained‘
experts had over unskilled countrymen, both in respect to the circum-
stances under which the trials were made and the character of the
experimenters. They spent ten months afterwards in examining
two hundred and ﬁfty witnesses at enormous expense; but they
knew too much to attempt to refute our testimony by a physical dem-
onstration at the cost of a dollar or two, which, if their testimony
be true, they could have done at any time. Nor, after our com-
ments, do they attempt to retry the New York experiments.

The true test, which it would have been necessary for these de-
fendants to have made in order to verify their volumes of testimony,
would have been to reproduce the original apparatus, as they say it
was, take it to Eberly’s Mills, set it up under the conditions which
they have testiﬁed it existed, and then, in place of calling their wit-
nesses to swear they”_heard it talk, set these same men, women and
children to talking through it either with the mill machinery at rest
or in motion; and if they had done that, it would have appeared
that not a word or a sound could have been heard through any of
that apparatus, and that their testimony that such things were done
in the past is absolutely false. The defendants know this to be true
even as to ”F reproduced,” and confess it. Drawbaugh and Benja°
min had been experimenting with the reproduced apparatus for some

DEFENDANTS CONFESS THAT F CANNOT TALK. 175

days before we were admitted to the show (defts, ii, 1323); and
Drawbaugh’s knowledge and capacity to do what he swore he had
been doing almost daily for many years had been fully tested by his
counsel and experts. When the door was opened to us, the ﬁrst
remark made by Mr. Benjamin was, "Zhat all he expected to get was
a sound, and new and then a word.” (Pope, p. 1323) ; and when
the show began they " would not allow” Drawbaugh to try to adjust
the instruments. (Pope, p. 1335.) ’

The cases are numerous where, with the improved knowledge and
skill derived from the successful patentee, machines have been at-
tempted to be rehabilitated and operated ; but the courts have always
said, "You must reproduce your original conditions, not import
the improved knowledge and skill of the subsequent day to supple-
ment the failures and deﬁciencies of the former one.” And no
patent has ever been destroyed by the testimony of witnesses that a
machine existed formerly, no part of which remains as the founda-
tion upon which witnesses propose to build the remainder. In the
Goodyear case, a number of witnesses swore to the former existence
of vulcanized rubber. Judge Grier remarked in his opinion that it
had been said that time devoured everything, but that it must have had

an excellent digestion if it could have digested india rubber; and

their testimony was disregarded, of course. So in the sewing-ma-
chine case, where remains of the Hunt sewing machine survived,
and were supplemented by only a few lost parts. The diges-
tion of time must have been Very elective in this case, when it
selected the alleged original of “F reproduced” for destruction, but
left the original F—a perfectly worthless instrument— not only in
existence, but in active use up to the last day. Perhaps, being so
much better, it was preferred by time for destruction. Death loves
a shining mark.

Lord Mansﬁeld lays down this :—

"It is certainly a maxim that the evidence is to be weighed accord-
ing to the proof which it was in the power of one side to have pro—
duced and in the power of the other to have contradictedz”

See Smith V. Whitman, quoted,ip. 129, supra.

In this case, we contradicted the testimony of their witnesses as to
what they heard through these instruments by the very best sort of

176 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

testimony; and it was in their power to have reﬁtted that contradicé
tion by repeating the experiments which they had testiﬁed to With
the instruments which they had used ; but knowledge on the part of
Drawbaugh himself, as well as his expert, was sufﬁcient to deter them
from any test which honesty would have required them to make.

The result of the evidence is, that the defendants have attempted
to foist into the case “F reproduced,” the original of which never
existed, in order to sustain their testimony that from 1867 down-
ward Drawbaugh had a practical, successful, operative speaking
telephone, when they know, and by their admission in respect to the
"reproduced F,” admit that the original F, whatever else it might
do, had no such capacity. The issue made by the answer and the de-
fendants’ testimony is completely crushed by the proof, and, so far
as depends on the old instruments, the defendants have no stand-
ing in court whatever.

The New York tests were also made upon I and C, both "repro-
ductions” of alleged instruments, the original operating parts of which
do not exist; and there is no intelligent testimony as to their character
or construction, except that of Drawbaugh. Indeed some of his wit-
nesses swear that their original condition was just what it is now. If
it were to be conceded that the reproductions of these are accurate
copies of the originals, yet the proper tests to be applied to them
were not such as were made in New York, but such as the witnesses
testiﬁed had been applied to them at Eberly’s Mills by ignorant and
unskilled people, most of whom were ready witnesses for Draw-
baugh, and could have been had to repeat what they testiﬁed to in
the presence of witnesses, if the defendants had believed that such a.
repetition would have resulted in anything but disgrace. One of
the witnesses (Zearing) swore to speech from I when it was lying
on the middle of a table by the side of which he was standing;
Eicholtz and his wife swore to speech from some instrument when
the machinery in the room was all running.

It would have been interesting to have put the receiver I on the
middle of a table in an open room and had farmer Zearing stand up
by the table and understand all that was said, as he swore he did Nov.
25, 1873 (defts, iii, surbtl, pp. 126, 130), or to have had Eicholtz

hear thr'otwh it when the machiner ' was set runnino" in order to show
0 D

THE FALSE "REPRODUCTIONS.” 177

that nothing could interfere With it, as he swears he did in Novem—
ber, 1873 (defts, iii, snrbtl, 156).

In the trial with “ B reproduced,” the elongated baseboard which
would prevent the ear from approaching the opening of the can so
as to exclude other sounds was sawed off by Mr. Benjamin as a
condition precedent to any attempt to hear through it. He had
already tried the “B reproduced” in the condition in which the
baseboard of the original was, and found it necessary to radically
alter it in this respect before he would venture upon any exper»
iment in our presence. Even for his one day’s test he added bind-
ing posts or couplers, without which the coil would quickly be torn
to pieces. (Benjamin, defts, ii, 1307.)

In this case the only Witness as to the existence of the destroyed
apparatus is Drawbaugb himself, the value of whose vast but unknown
quantity of the $5,000,000 of stock founded upon his testimony de—
pends upon his establishing the truth of his statements. The defend-
ants, however, believe that the rule which governs other cases in this
regard does not apply to Drawbaugh; for they had him swear, in
answer to a direct question of his own counsel, whether his testimony
was affected by his interest as a stockholder (defts, ii, 1089, ans.
1565) : "I know that I was not inﬂuenced to make any wrong state-
ments from the interest that I received from the company ”; so that
the Court has it from Drawbangh himself that no amount of expected
money affects his truth or his memory!

In the same way, the instrument " B reproduced ” is very mate-
rially better than B ever could have been. The differences here are
not ofprinciple. But if the missing parts of B were what Draw-
baugh says they were, the alterations would make the difference be-

tween hearing faint and intelligible sounds and not hearing them.

In " B reproduced ” Mr. Benjamin at once had the baseboard sawed
off at the end of the tin can. This brings the vibrating diaphragm,
which is the source of sound, nearer to the ear, and, what is of more
importance, enables the mouth of the tin can to be placed around the
ear so as to exclude external noises. If this was so essential to Mr.
Benjamin, listening in the seclusion of a closet, how much more im-
portant to those who had around them the noise of a machine shop,
ii dam and a dame. Indeed, Mr; Benjamin found it necessary, even

A -, “Vi-Wrrd-‘T' ‘w‘YZJ‘. ,
n N, “rug-y Wawn-r ‘ 1.20%.".«urw,

178 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

in his closet, to press it so closely to his ear that the can slipped and
threw the instrument out of adjustment (defts, ii, 1307). With the
ﬂimsy attachment of the original B this would have happened on the
ﬁrst occasion of use, yet they profess to have used it for nine or ten
years.

“7e have already referred to_ the effect of these facts, which
the Court now has before it, on the character of the witnesses,
and on the cha 'acter and value of the testimony introduced by the
defence. But it has one other and further importance. Some of the
changes, which gave greater stability to “ F reproduced” than F, as -
described by Drawbaugh, ever had, are simple and obvious. Still
further changes in that direction could be made by very slight inveut-
ive skill. The changes between B ant “ B reproduced,” which con-
sist chieﬂy in simply sawing off the end of the board and fastening
the tin can down securely so that it will not slip, are changes which
would occupy only ﬁve minutes of time, and no inventive skill what—
ever. Drawbaugh was a neat workman and a really good mechanic.
It is impossible to believe that he used F and B for a long series of

‘ years without at least making some of these changes, — and yet that
is their story.

F reproduced and A.— After these experiments with “ F repro—
duced” and “B reproduced,” which are the most important in the
case, because they are the two about which the defendants have
called the most witnesses, the defendants on the second day tried
“ F reproduced” and A. The words and sentences uttered into " F
reproduced” on this occasion were not newspaper paragraphs, but
were entirely familiar phrases which came to the mind of the speaker
on the moment, the speaker being Mr. Hill, the defendants’ counsel,
except that he twice pick (1 up a newspaper and read three or four
words out of it. He uttered into the transmitter phrases generally
of from ﬁve to ten words each, interspersed now and then with

counting regular series of numbers from one to ten, irregular num—

bers being used only twice. One hundred and thirty—seven phrases
and eighteen sets of numbers were uttered into the transmitter
by Mr. Hill; Mr. Benjamin listened at the receiver, heard some
words out of fourteen of the phrases, but there were only seven in-
stances Where he heard the Whole phrase completely. That is to

TESTS OF THE msTRUMENTs.—-“F REPRODUCED” AND A. 179

say, out of one hundred and thirty-seven phrases uttered into the
transmitter, he heard seven correctly, and those seven were, " Answer
hack to me what I say,” which we will assume to be correct, al-
though it was not exactly correct according to the report ; “ Did you
hear what Isay?” which was not verbally correct; ” How are you
today? ” " Can you hear what] say now?” " Do you hear me now? ”
" Did you hear what Isaiah? ” “ This is the tumbler F.” This occu—
pied three quarters of an hour. Eighteen times Mr. Hill counted
from one to ten consecutively. Five or six times Mr. Benjamin,
listening, was aware of that fact; the rest of the time either he
heard nothing or he heard that there was counting, but did not
know how much. For this test see complts, ii, 1325, app. 513.
On the third day “F reproduced ” and A were tried again, with
all the additional precautions and advantage which the previous
tests had suggested and which Drawbaugh never employed. The
results weie in a literal sense somewhat better, but in a practical
and legal sense equally worthless. One hundred and seventy—
eight phrases, part of them conversational phrases and part of
them from a newspaper, were uttered into the transmitter by Mr.
Hill, using with the utmost skill his uncommonly clear and even '
voice. Thirty-ﬁve of these phrases out of one hundred and seventy-
eight were understood with many repetitions, but most of them
were familiar phrases. Thus the phases that were heard correctly
were: " What shall [do now,” " Shall [read something,” not heard
exactly right; “ Very well, [will now read,” “If President Arthur,”
" Does not immediately retire him,” " Take it of and put on the
Tisdel,” “Do you hear that,” “ No, that was not right,” " [ will read
from the newspaper,” " iVew Yer/c Daily Tribune, March 29,” “ Did
you yet that,” “ There is no reason,” " 4117‘. Lowell, our minister to
England,” ” Forwarded to the home department,” “ relating to the
case,” “I will read another article,” ” Did you hear that plainly, ’
“ How did you hear that,” “ Did you hear me then,” “ [Iow plainly
can you hear me,” " Listen and 1 will read,” " Do you now hear
what [say,” ” [10w plainly do you hear,” " Is this any improvement,”
" Let me read again,” “ [8 now at its height,” which was not quite
correct; "Do you hear me now,” "Do you hear this,” “ Answer

180 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

what instrument you have,” “Iwill read again,” "What is the reason
you can’t hear now.” Out of other phrases some words were heard,

but not enough to convey an intelligent idea of what was said.

Some of the diﬂieulties in transmission were ludicrous. One news-
paper sentence attempted had the words " the recall of Mr. Lowell,”
referring to the minister to England. After seventeen repetitions,
Mr. Benjamin listened, and not getting the rest of the phrase at all,
was satisﬁed that the name was “ Mr. Blaine.” The word "land-
lords ” was pronounced over and over again and spelt, and “ Chan-
dler” was the nearest the listener could get to it. The word “ ten-
ants ” pronounced over and over again, and “ cannon 7’ was the near—
est heard. The word “ inquiries” was pronounced over and over
again and spelt six times, and then given up. And all this time
there were stoppages after they had read four or ﬁve phrases to
adjust the instruments or give directions from one operator to the
other by means of a telltale line run between the two stations, a
contrivanee which enormously tended to assist the perfornmnce,
and which did not exist in Drawbaugh’s shop. For this test, see
complts, ii, 1330, app. 545.

“ 0 reproduced” and “I reproduced.”——The experiments were
made by adjusting each of these instruments with a modern commer-
cial Bell magneto telephone, and each of them is somewhat better
than the alleged originals, according to the description given by Draw-
baugh of those originals. Not a single sentence was understood
through them; ﬁfty words were got through, but no complete sen-
tence, nor enough in any case to give a listener an idea of what was
being said, even with the great precautions taken in the way of
silence, skill, etc. Sixty irregular numbers were spoken into the
transmitter; the listener thought he heard a great many of these,
but only twelve of them were heard correctly. This tesﬁlmmy
occupied an hour on the ﬁrst day, and the defendants never ventured
to repeat it. For this test see complts, ii, 1336, app. 549.

The defendants went a little further. They undertook to try ” F
reproduced ” with a better instrument than Dlawhaugh ever had, —
with a modern magneto receiver of a good pattern. sometimes a Bell
commercial instrument and sometimes the defendants’ infringing in-

TESTS OF THE INSTRUMENTS. —"F REPR.” AND A BELL RECEIVER. 181

strument, the Tisdel receiver. Of course the results produced
ought to be very much better than anything Drawbaugh could have
obtained, even setting aside the differences in the skill of the opera-
tors and the Conditions of freedom from noise and disturbing causes.
They were a little better than those obtained with “ F reproducec ”
and "B reproduced ” or with "F reproduced” and A, but not good
enough to be of the slightest practical value. The test lasted an hour
and ten minutes, and all that was accomplished was the occasional
transmission of a single phrase, for the most, part, " Do you hear me
new?” and phrases of that character, though sometimes unexpected
phrases were transmitted ; but never enough to render the apparatus
of the slightest value for the transmission of intelligence. This, be
it remembered, is the best that can be (lone, that all modern skill and
invention have done, everything that can be done to provide an ap-
paratus in which every conceivable improvement is added, including
a new receiver, saving only that the transmitting member preserves
some resemblance to some of the flaturcs alleged to belong to F.
Thus the tests demonstrate that so long as a transmitter of the general
type of the structure F be used, no matter what improvements can be
introduced and added, the apparatus as a whole is practically worth-
less. For this test see eomplts, ii, 1340, 1372—3; app. 552.

Some stress has been laid by the defendants on the total amount
transmitted in three long days; but that counts for nothing. A
single paragragh of thirty words, lead and understood correctly at
once, would demonstrate success; thirty Words out of three hun-
dred, in an hour’s time, demonst'ate failure; and since the old in-
struments as alleged were worse, and the old conditions worse, the
test proved that Drawbaugh‘s neighbors never understood anything.

The Court knows, therefore, that no apparatus good enough to
destroy a speaking telephone patent can be made up out of the in-
struments “F reproduced,” "B reproduced,” “C reproduced,” “I
reproducet ,” A. It knows that the instruments of which F, B, C
and I are the remains, even if the missing parts were supplied as
Drawbaugh alleges, were much worse. It knows that the conditions
present when Drawbaugh’s neighbors tried to hear (whenever it
was) were much worse. If he had at an early day obtained with

182 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

them the results which the Court now knows are the best he could
have obtained, his career would be accounted for. That is not all.
Two thirds of the defendants’ witnesses who heard any sounds
swear to good, intelligible and distinct speech through these. What
becomes of them, and what is the value of a record, two thirds of the

material part of which is Wrong on the material point?

In the sewing-machine case, the original Hunt machine, the date of
which was proved beyond controversy, did actually sew one or two
cloth tubes which were used. The alleged “reproduction” actually
sewed in court. It performed better than the Drawbaugh reproduc—
tions, yet it could not defeat Howe, who had given the sewing ma-
chine to the world, and Judge Sprague ﬁnding that such a performance
did not make it a practically useful machine, said : ——

“ The stubborn fact that Hunt’s machine would not work and that

Howc’s would made the oaths of the witnesses as inoperative as the
machine.” Ely v. Manson ing. 00., 4 Fish. 79 (1860).

DRA‘VBAUGH’S MICROPHONES; THEIR ALLEGED DATES, AND THE
EFFECT THEREOF ON THIS CASE.

Mr. Bell’s patent speciﬁcally showed an apparatus contain-
ing what is known as the magneto transmitter; but he stated
that a contrivauce in which the voice varied the resistance of ’
the circuit would be an equivalent. This type of transmitter has
been found the most effective in practice, has been the subject of the
greatest labor and experiment, and is almost universally adopted in
use. Among the experimenters who have been famous for it, and
for improvements in it, are Berliner, Edison and Blake in this
country, and Prof. Hughes in England. Mr. Edison’s work became
known to the public through the newspapers in the summer of "1877,
and the contrivance has attracted great attention. Universal expe-
rience has settled that the contact pieces of the microphone should
be, one or both, of a rounded form, and one or both of hard gas
carbon. The most admirable form of it is that contrived by Mr.
Blake, known as the Blake transmitter, and in universal use through-
out the world since the fall of 1878, when it was ﬁrst offered to the
public. This instrument owves its superiority to the very ingenious,

DRAWBAUGII’S MICROPHONES. 183

nice, and admirably convenient organization and arrangement of its
parts.

The defendants have produced a series of microphones. They are
L and M, G and O, and H, and said to have been made in this order.
They are all of them highly organized instruments, full of ingenious
details, and even tastefully ﬁnished. H appears on inspection to be
substantially identical with the Blake transmitter, even to its details
and manner of arranging and mounting the whole. It does indeed
——and this is one of the most remarkable things about it—lack a
feature which is the most important in the Blake, but which 2's not
visible upon inspection. So far as can be seen, however, the world
has not materially improved, and Drawbaugh has not materially im-
proved upon the instrument H. H and E undoubtedly are, and in
the New York tests were offered as, the best couple he had.

Now, although the defendants do not in terms, and arguinmta-
tively, offer all these as made before the Bell patent, yet Drawbaugh’s
deposition, when connected with other proofs they present, if be-
lieved, shows as conclusively as they show anything that the four
highly organized microphones, L, M, Gr, 0, were completed and H
substantially ﬁnished by August, 1876; that is, about the time when
Mr. Bell ﬁrst became generally known. The defendants evidently
feel a little shy of formulating such an assertion about them, in
terms. It was too much.

No witness swears that they were made before the Bell patent.
Their construction forms, however, a part of their story; they are
important to us because they carry the story of which they form
a part to absurdities beyond belief. We refer to L, M, G, 0, II,
J, N, Q, P, K.

L and M are each en closed in a neatly turned walnut box, about
three inches in diameter and two and a half inches deep. They are
substantially alike.

They are now simple magneto instruments, each with a permanent
magnet, metal diaphragm and thin air space and tension spring on

the diaphragm. They have the rather long horseshoe electro—xnagnet

of the ordinary telegraph instrument. All modern commercial
instruments have the extremely short core and short coil of large
diameter shown in Mr. Bell’s second patent (Jan. 30, 1877).

,1 maps—Aweg— .4;

. u. .Whig

184 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

Universal experience shows that this is by far the best plan. D
and E have it in a very pronounced form; these features, once used
by an experimenter or constructor, never would be laid aside.

.z’zs V ’1’!

1',
Tu l

//“LE'v

M as sworn to, one half size. I, as reproduced and ﬁrst sworn to, one
fourth size.

The resemblance between I and L or M is very striking. L and
M are inferior to D and E, especially in the feature named. Their
structure therefore is certain proof that they were next after I and

before D and E.
N and Q. on the other hand, are like D and E in this respect, as

the drawings show.

S.\\§\\

\z _ 3' '1

\\\\\‘SN

"Wm..—

é? lllllllllltiaw
II/////////,y//////,,,,.

I},

N, one half size. E, one half size.

\\\V
W

3":

But L, M, N, Q have double pole magnets and double coils—
horse~hoes. D and E have the single pole and single eoil magnets
shown in Mr. Bell’s patent of Jan. 30, 1877, and universally adopted
in all modern instruments. Thus if D and E were the next after I,
and before L, M, N, Q, the claimant must have been years in go—
ing backwards, so far as magneto instruments are concerned. The
order shown by the character of these magneto structures is I, L, M,

DRAWBAUGH’S ALLEGED MICROPHONES. 185

N, Q, D, E. The general resemblance of E, L, M, N, Q is such
that the kind of witnesses called, and who saw nothing but the outside,
could not distinguish them when testifying after a lapse of years.

It is alleged, however, that L and M originally had hard carbon
microphones arranged between the magnets and connected with the
diaphragm. ,This is a plan which is foolish; Drawbaugh says that
he found it so and took out the microphone. This alleged structure
rests solely on his own testimony.

\ .ﬂ.
\ LAW

“ M reproduced ” ; alleged microphone restored by Drawbaugli's memory.
One half size.

The microphone which he says was contained in L and M is, ac-
cording to his description, identical in almost every minute detail
with the operative parts of the microphones G and 0. That is a
highly organized contrivunce; the contacts are of hard carbon,
rounded, and backed with a spring. There can be little doubt, there-
fore, from the testimony of the structures themselves, that the micro—
phone (of itself a most wonderful invention) was used in G and O;
and then the constructor, attempting a further (but foolish) step,
tried to combine a microphone and a magneto in one instrument and
made L and M. No variable-resistanre transmitter is alleged be-
tween the broken tumbler F‘ and these highly ﬁnished pairs.

H is an instrument of great reﬁnement. It contains every feature
found in the “Blake transmitter,” the most successful instrument ofthe
world, even to the details of arrangement, except two features, which
are the most important of the whole, but are not apparent on inspection.
One is the weight or anvil in the back electrode, concealed in a

186 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

brass cap; mebaugh has the cap but not the weight. The other is
afree diaphragm, also not visible on inspection, supported by a
necessary spring; Drawbaugh’s has the spring, but his diaphragm is
clamped, and the really important function of the spring is not used.

J is a copy of H, except that the diaphragm is elongated to allow
two sets of microphone contacts to be mounted on it. It is a foolish
change, and Drawbaugh said that he found it so. It was obviously
made after H, and Drawbaugh so testiﬁes.

P is an anomalous coutrivance. Drawbaugh says that it was
amongst the last he made before this controversy, and is very poor.

K is an Edison motophone. In Drziwbaugh’s hands it gave such
bad results that he never ﬁnished it, but it is presented as his inven-
tion. He says that he has " no distinct recollection” when he made
it, but it was, he thinks, in 1879, and was the last he made befme
this controversy. Edison’s was described in the newspapers in 1877
(complts, iv, exhibits, 437, 439—441).

H has an induction coil; so has J. This is so enormous an im-
provement that it is certain that G, O, L, M, which do not have it,
were made before H. i

There are three special sets of absolute facts which the history of

these ﬁnished microphones and lnagnetos must square with.

(1.) I]. 0. Springer, defendants’ witness, swears positively that
he ﬁrst lived at Eberly’s Mills in April, 1876; that he assisted Draw-
baugh in experiments almost daily through the rest of that year;
that for several months during the ﬁrst part of that period all they
used was F and B, the tumbler and tin can, which were “ attached
to the Wires pretty much all the time ” (defts, i, 197, ans. 62).
Drawbaugh, called to control one statement of Springer’s, allows this
to go unchallenged. We do not believe this as stated, but against
the defendants it has the force of a fact. Plainly the highly organ-
ized and highly ﬁnished hard carbon microphones G, O, H, etc., did
not then exist, and, considering the enormous distance between F
and G, and that F, as it then existed, is alleged to be the result of
ten years’ work, the ﬁrst hard carbon microphones must have come
a long time after the summer of 1876.

DRAWBAUGH’S ALLEGED MICROPHONES. 187

(2.) The structure of the several instruments shows that their
sequence must be substantially what we have stated.

(3.) Several neWspaper articles in April and May, 1878, in two
cases at least due to speciﬁc Visits of certain newspaper reporters to
Drawbaugh’s shop, state that-Drawbaugh was then engaged in the
attempt to construct, " is inventing,” "‘ a new kind,” "a different
kind ” of telephone, “ on a new plan,” which were intended to “pro-
duce the sounds louder and plainer than the mother invention.”
To the " mother invention,” according to the writers, he made no
claim. There must have been some particular work at that time
to lead to these publications. Edison’s efforts with variable—resist—
ance carbon telephones were then attracting attention in the papers.
(See the publications of June, July, September, 1877, and April,
1878, complts, iv, exhibits, 426, 432—454.) That was, in ordinary
parlance, " a new kind ” of telephone, from which great improve-
ment in results was anticipated. Drawbaugh’s history must ﬁnd
something at that time which meets this printed proof, and the be-
ginning of experiments by him in this comparatively new line which
he had read of is one of several things which could meet it.

Drawbaugh’s testimony about dates is worthless; he carefully
avoids committing himself to dates. His testimony about the se-
quence is as follows : —

(Defts, ii, 1045) “Don’t remember whether I used 'I’ after I had
L and M.”

(Defts, ii, 832) " used induction Coil with L and M before I used
it with H. It was separate from them, ‘laying lose on the table,’
not organized into the instrument. I could not state how long; it
might have been two, three, four, ﬁve or six months, maybe more.”

P. 833. Made L and M before H.

"Q. 294. How long before?

"A. I could hardly state that; it may have been six months; I
don’t know, may be more. About that time I was making diﬂ‘creut
ones and I don’t remember the time that elapsed between them.

"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.”

‘Vas such a spectacle ever presented! It is pretended for him
that D and E were his ﬁrst ﬁnished magnetos; that L and M were
the ﬁrst microphones ever made in the world; and this man says in

188 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

effect that he has no real recollection which were made ﬁrst; yet they
expect the Court to believe that they Were of his creation; the ﬁrst-
born strong enough to live to man’s estate. Non mi ricordo again.

He continues : —

" 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; I think, to
the best of my recollection that they were made before exhibit H,
but I won’t be positive about that, there were so many made that I
have lost the exact order; I am positive that they ‘were made after L
and M.”

H is a new type of microphone; an instrument differently organ-
ized from G or O; with half a dozen patentahle features they did
not have. He pretends that he invented them, and yet, as to date,
the one thing material, —non mi ricordo.

"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.

"A. It is a telephone transmitter; I made parts of it ; parts may
have been made by some other parties, I don’t remember who, but
I often had George W. Drawbaugh to help me make some of the in-
struments.

"Q. 268. Do you recollect when this instrument was made, so as
to ﬁx the time?

“A. Not positively; I don’t know any (late 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?

"[ Objected to by Mr. Storrow as leading and 2'ncompetent.]

"A. The time elapsed —just 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."

Another case where the " inventor” cannot tell the CUIltt, but the
Court is expected to tell the inventor when the "invention" was
made. Not known when he made the Blake tran mitterl

George W. Drawbaugh says that he made the woodwork of J in
the summer of 1078, and H was then old (defts, i, 627).

N is a magneto receiver with many modern reﬁnements; but it

has two cores, and the permanent magnets are too small. Draw-
baugh testiﬁes, as usual (det'ts, ii, 851) :—

HIS MICROPHONES AND THEIR SEQUENCE. 189

"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
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.

“Q. 950. Please approximate the time of making instrument N
as nearly as you can.

” [Olgjecled (0 by Mr. Storrow.]

"A. I am perfectly satisﬁed that it was made before exhibit P.”

Then (p. 849) :—

" Q. 343. What is your best recollection as to how long J was
made before P?

"A. It may have been made six or eight months—perhaps a

year; I cannot recollect the length of time betweenthose ma-
chines.”

As to J (p. 846) :—

"A. 335. I cannot ﬁx the exact time; it may have been between
the year 1877 and 1878; thereabouts, as near as I can recollect.

" Q. 336. It may have been mest any time, but what is your
recollection about the time?

" A. As near as I can recollect in them periods, ——- 1877 or 1878,
——I can’t distinctly recollect the time.”

This is offered as the best memory the man has for instruments of
Which one (P) was not a year old when the controversy began. The
Court knows that this is not lack of memory ; it signiﬁes an inten-
tion to proﬁt by a story told of him, but which he will not swear to.

The claimant swears (ans. 1584, defts, ii, 1091) that before April.
1878, he had completed and operated B, A, C, l), E, F, G, II, I, J,
L, M, N; "P, I think”; " not positive " as to K and Q

After this, and in their so-called surrebuttal, the defendants called
several witnesses (Dunlap, defts, iii, surbtl, 581, app. 661 ; Cham—
bers, 2'6. 67;, app. 662) who profess to have seen H substantially
completed in August, 1876 ; others had testiﬁed, though very vaguely
and doubtfnlly, as stated in Int. 26:), above quoted.

Elsewhere there is positive proof to overthrow this story; 3. g. ,
George Drawbaugh swears that he made the woodwork of J after
the time named; but this is what they ask the Court to believe.

Their last word, therefore, in their surrebuttal is that H, which is

190 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

the culmination of everything, and is offered by them as substan-
tially the same thing that is in use all over the world to-day, and
known to the world as the Blake transmitter, was substantially com-
pleted in August, 1876, and that L and M and G and 0, highly
organized and ﬁnished microphones, had preceded it. That, they
expect the Court to believe ; it is a part ofitheir story.

After H no usable instrument was made except J, which is a mere
rcduplication of H, and inferior for that reason. So their story in
effect is—thongh they are too discreet to so put it—that admirable
magnetos, D and E, and L and M, and highly organized hard carbon
microphones, G and O, and L and M, were made before Mr. Bell
was heard of; and the Blake transmitter H devised and substan-
tially constructed before Drawbaugh heard of Mr. Bell. And if
that be so, then, from the summer of 1876 to the time he ﬁled his
application, —-— and this controversy began in the summer of 1880, ~—
he made no progress nor appearance of progress whatever; because
after H he made only the worthless P, the unﬁnished and worthless
K, and possibly N,——that is what their history comes to.

What becomes of the story of constant work during those years?
How account for the fact proved by the newspapers, that in April
and May, 1878, he was inventing “a new kind of telephone?” Fi-
nally the Court is asked to believe that the man whose conduct and
repeate'l statements in 1876—80 are proved beyond controversy is a

man who had completed all these inventions before Mr. Bell was

heard of—— and made no progress since.

\Vill the Court look at the picture which this story presents? He
had made, so they say, in 1867, the contrivance F, a tumbler, as
unworkmanlike in appearance as it was worthless in results in 1867.
It had been in continual use, so their witnesses testify, and Springer,
corroimratml by Dtawbnngh, expressly swears, at least down to Julie,
1876. Suddenly, within a week, we ﬁnd in that shopthis wonderful set
of instruments, the ﬁve microphones ; no experiments that anybody
has stated or heard of preceded them; no experimental instrument
led the way to them, but, having spent nine years with nothing but
F as a variable-rcsistance instrument, he suddenly passed at one
bound to ﬁve highly ﬁnished and highly organized microphones,
with niceties and perfections of detail which it is impossible for the

ALLEGED PERFECTIONS AND NO RESULTS. 191

most brilliant inventor to have reached without experiment after ex—
periment. Then he stopped. The next four years produced hardly
another instrument and absolutely no improvement. That is the
story which the Court has got to believe, if it believes the dcfcndants’
record. Nor is that all. It was just as he was building the last of
these ﬁve microphones, alleged to be perfect, and certainly Very
highly organized and ﬁnished, which were accompanied, so their
story goes, by the highly organized and ﬁnished magnetos D and E,
that he ﬁrst heard of Mr. Bell. If this story be true, he would
have proclaimed it in the streets. Every neighbor of his, for there
was nothing secret about his work, would have joined with him;
his newspaper-writing friend, Holsinger, would have made the
sensational article of the day; he could hardly have helped rush-

ing to the Centennial with his instruments a hundred-fold better,

if the story be true about them, than that with which Mr. Bell
was astonishing the world. He did nothing of the kind. He
went to the Centennial, but neither carried telephones nor men-
tioned them to his travelling companion. His friend Holsinger pub-
lished Eberly’s Mills’ news in the papers in October, 1876; it was
about cows and pigs. And when Drawbaugh fell in with news-
paper writers two years afterwards, he stated (and his friend Moﬂitt
agreed in this) that he never got anything or accomplished anything
which could antedate Bell. These statements are proved beyond
controversy, and are not contradicted by Drawbaugh. And this
from a man about whom the defendants have put into the record,
from his own mouth and from the mouths of others, that they expect
the Court to believe that before he heard of Bell he had magnetos
and microphones in abundance equal to those which the world
reached four years later.

192 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

THE HISTORY OF THE CLAIMANT AND THE TESTIMONY OF THOSE
NEAREST TO HIM PROVE. THAT HE DID NOT INVENT THE SPEAK-
ING TELEPHONE.

Drawbaugla’s TVz'messes.—It was in the summer of 1880 that this
man was ﬁrst suggested as a claimant to this great invention.

It is asserted of him that he was then sunk in abject poverty, bur—
dened with a helpless family ; for eighteen months he had been living
on what the defendant Chellis saw ﬁt to dole out to him; his house
mortgaged to Chellis; otherwise in debt to him; in the possession
of the defendants as such a man is whose daily food depends on
their will, and who has wealth dangled before his eyes; in a posi-
tion certain to respond, consciously 01' unconsciously, to their inﬂu-
ence upon him. It is under these circumstances that he is ﬁrst
heard even to whisper that he can claim against Mr. Bell.

Up to that time the strongest statements he had made for himself
were that he had recently tried to make improvements in telephones ;
that he had early tried to transmit sound (as had many others), but
had absolutely failed to transmit speech, and had dropped the subject.

The story alleged is that Drawbaugh had conceived of the inven—
tion at least as early as 1863—64 ; had constructed an instrument and
talked through it in 1864; and that he communicated this to J. A.
Smith “ early in the spring of 1867” (V. p. 136, supra, for the
details of this). That is the story they are to be judged by. The
period to be examined begins in 1863—4.

The facts stated by their answer, obvious in the nature of the
case, and referred to on p. 96, supra, must be borne in mind
throughout.

It is a part of his story that all that he did relating to telephones
was freely communicated to the public, and that the public were
allowed and invited to personally test his instruments by talking
through them, and did so in large numbers. This is the explicit
statement in the answer.

Touching the alleged telephones, the story is that they were known
to eVerybody, —~ freely exposed to View and shown to every one who
visited his shop. If this be the fact, everybody connected, as a
partner or workman, with the various industrial enterprises carried

' Wank“... .‘ «.2 “1.9“...“ “a . M’
HIS INTIMATES DISPROVE HIS STORY. 193

on at his shop, would know of it; everybody in the village would
know of it. In a village of seventy—ﬁve inhabitants nothing of that
kind could be kept a secret, if he wanted to; and his assertion is
that it never was. There ought not to be the slightest difﬁculty in
proving that story if there is any truth in it.

It is impossible that such things could have existed so long, with
i so much known about them, Without leaving their marks somewhere,
upon some piece of paper, some sketch. some letter, some newspaper
reporter’s item,—-—for all this was within gunshot of Harrisburg.
They have produced none. We have, and they disprove his claim.

This claimant is to make out a clear case; he is to satisfy the
Court that the case is free from doubt; particularly, in order that
the Court may be sure that there is no artiﬁce, forgetfulness, mis~
take or concealment, he is to lay before the Court every reasonable
source of information, especially the best sources. The authorities
on this point are abundant. If the memories of Witnesses are to
be called on to prove that this thing was publicly exhibited and
known, there can be no Witnesses so good as those whose daily
occupations kept them at the place of exhibition.

Put the question to all the occupants of that shop; put it to all
those of his acquaintances best ﬁtted to understand and appreciate
the invention, and the answer which they all give, in substance,
with hardly even an apparent exception, is the same answer which
his conduct and his history give, that there was no speaking telephone
there before the Bell patent, and no reliable evidence even of a trace
of (my thought on the subject.

lVe have called forty people, who must have known of it if it had
existed, and they never knew of it. Drawbaugh has not ventured
on the stand to contradict one of them; nor was there a single in—

stance during their cross-examination where he suggested that he

remembered any disclosure to them. Thus lhefacl of non-disclosure
2's admitled.

What have the defendants got to meet this? ‘They say that the
loafers who went there to play cards on Sundays, the farmers or
the farm laborers who went in there to while away a rainy day,
knew all about it.

Such evidence under these circumstances may excite the wonder

194 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

of laymen that men can be got to so swear; they would excite the
wonder of this Court if the books were not full of similar instances;
but it does not make one step towards proving speaking telephones,
nor in relieving the mind of the Court from all doubt on that subject.
The most that they can do is to create a doubt, — but not more than
a doubt. That is not all. As to a considerable number of them we
proved that their visits in question, alleged to have been before the
date ofthe Bell patent, were after it. As to a still larger number,
the Court knows that the instruments through which they swear
they heard speech are incapable of yielding it.

Again, the defendants’ witneSses are men who profess that the
telephone, as seen by them at his shop, was a matter which did not
interest them, and to which they paid no attention. At most, it
satisﬁed a moment’s idle curiosity, and they passed it by without
further thought. Except in a few cases, though often at the shop
afterwards, they never attempted to talk through it again. Now,
such witnessesﬂre testifying to a matter which is to them a mere un—
interesting incident, —- a triﬂe to which they never paid any attention,
and upon which they never bestowed any thought. We do not be—
lieve men are so made that before telephones were heard of in the
world a hundred of them could regard a good one as a mere unin-
teresting triﬂe; we do not believe that a man of that kind of in-
telligence can give testimony which the Court can rely upon. Still,
that is What the defendants offer, and all they offer, and that is what
they assert in effect about all their witnesses. But it is not so with
the complainants. We believe, and our witnesses believe, that if
such a thing had been brought to their notice before telephones were
known of elsewhere, they would have been very much struck by it,
interested in it, and most of them would have acted upon that knowl-
edge; none of them did. We do not rely, then, merely upon
memory; we rely, in almost every case, on the fact that the conse-

quences which would have been certain to have followed such knowl—

edge or such exhibition did not follow; we know that the gun-
powder was not lighted, because no explosion followed.
Such is the general nature of the proofs; let us now look at the

details.

DRAWBAUGH HAS DISCLAIMED IN PRINT. 195

Written Proof. —It is all proofis in favor of the complainants.

In 1874 or 1875, he published an advertising card, styling himself
“ inventor, designer and solicitor of patents,” and on the other side
gave a list of the inventions on which he wished his fame to stand.
The telephone is not among them.

In the spring of 1878 his electric clock attracted several newspa-
per writers. lVbat they learned was published. With all of them
the telephone, then attracting great attention, was mentioned.
They were in search of sensational articles; yet all that came of it
was that one writer said that he was then trying to invent improve-
ments on the telephone (as were hundreds of others) ; and another,
Mr. James P. Matthews, editor of so conside 'able a paper as the
Baltimore American, published that Drawbaugh had tried to transmit
sound before Bell or Edison, but had never made an instrument that
would talk, and never expected to.

About the same time Drawbangh made a similar statement to Mr.
Weaver, bis patent solicitor, and to Mr. Theodore Grissinger, one
of his partners, who was furnishing money for the clock enterprise.

In 1879 he became involved in an interference contest with David
A. Hauck, who had bought his faucet patents in 1873, and thereafter
had carried on the manufacturing business in Drawbaugh’s shop.
They had been intimate, and Drawbaugh said that he had been in the
habit of communicating his inventions to Hauck. If there was a

speaking telephone there Hauck must have known ofit. Drawbangh,
assisted by his present counsel, Mr. Jacobs, and furnished with

funds by Chellis, his present backer, and a defendant here, cross-ex-
amined Hauck in May, 1879, with a View to make him admit that;
Drawbaugh was a great inventor. Hauek said that he considered
Drawbaugh an imitator and improver of other men’s ideas. Upon
that topic a number of contrivauces were named, but no one suggested
that Drawbaugh had invented the telephone.

then Drawbaugh went on the stand in June, 1879, Hanck taunted
him with being a man who never made anything that worked satis—
factorily, and dared him and his brother Henry F. Drawbaugh to
name anything to contradict that taunt; whereupon, Henry Draw—
baugh and Daniel Drawbangh named a number of coutrivauces Draw-
bangh had made, but did not mention a telephone among them.

196 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

How much ten-year old recollections evoked since this controversy
began can stand against these positive facts proved by contempo-
raneous print? Yet this is only a portion of that history which
could not be what it is if the claimant had invented the telephone.

Let us look at the papers in detail.

Publications about Drawbaug/t and his disclaz'mz'ng Statements in
1878~9 and previously.—Ephraim R. Holsinger, one ofDrawbaugh’s
principal witnesses, and who was a printer, started to print a small
advertising sheet at Eberly’s Mills in 1874. In that (p. 374)
appears the announcement (complts, ii, 1211; iv,365—-374) :'—

” The following business houses have favored this ofﬁce with an

order for hillheads, enveIOpes, labels, statements, circulars, etc.,
etc.”

Then follows a list of the notices, among which is,—

“Dan’l Drawhaugh, Eberlys Mills, Pa. , Invento1, Designer, and
Solicitor of Patents.”

The same witness printed for Drawhaugh, between June, 1874,
and the fall of 1876, either 150 or 300 advertising:r cards (Holsinger,
complts, ii, 1212, ans. 10), one side of which is as follows :—

I$imi¢l @mwlmuéh.‘

we» Models Neatly Made Ta Order.
, Ebemly’s Mills,
'C’Lmzberla/nd County, Pennsylvania.
{snowman

It was pretty hard to understand ——one may as Well say at once
that it was impossible to believe—that a man who held himself out
as a solicitor of patents and model maker should not have at least
drawn a caveat on the speaking telephone if he had invented it.

DRAWBAUGH AS A SOLICITOR OF PATENTS. 197

In a deposition which he gave on his own behalf in an inter-
ference about molasses faucets in June, 1879, he began to testify as
an expert, and, objection being made, he qualiﬁed himself by saying
that he had made, perhaps, ﬁfty inventions, and patented over a
dozen. Then (complts, iv, exhibits, p. 123) :—

“Q. 100. Have you applied for and procured in person patents
for any of them, or have you not?

"A. Yes, sir f I mean I made my own speciﬁcations, models and
drawings, and drew my claims.

“Q. 101. Have you, or have you not, done the same for other
inventors?

” A. Yes, sir; I have.

" Q. 102. How long have you been working in machinery?

" A. From the time I ﬁrst could work.

" Q. 103. Have you worked at anything else?

" A. To the best of my knowledge, I have not.

“ Q. 104. Have you, or have you not, read and studied much
upon the subjects of mechanics and upon kindred subjects?

" A. I have read a good deal, more particularly upon mechanical
subjects.”

" X Q. 180. You stated that you have made your own speciﬁca-
tions, models and drawings, and also done so tor others: have you
not uniformly had an attorney of record in all your patent cases, in
addition to yourself, who has supervised and corrected your speciﬁ-
cations and claims?

‘ A. All my cases through the Ofﬁce were gotten by attorneys,
but some of them were dictated and drawn up by me. Though I
have taken out a number of patents for other parties, I prepared
their papers and drawings, but they made their own applications.
It was then not necessary to have a power of attorney from the par-
ties. There was no attorney of record in these cases.”

Certiﬁed copies of these questions and answers were introduced
in our moving papers (pp. 179, 80). Of course the defendants
knew that unless they could offer a show of displacing this, they
never could make the Court believe that this man spent ten years
longing to get some one to draw and ﬁ-le a speciﬁcation on a com-

pleted telephone.

So they examined him carefully (defts, ii, 899), for the purpose
of proving that he was not competent to draw a speciﬁcation; that
he knew he was not; that he was an ignorant person, without any
schoUling, and he testiﬁed (p. 900) :—

198 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

/ “ Q. 622. 'Why did you never draw speciﬁcations to be ﬁled in

we the Patent Ofﬁce ofyour own inventions?
“A. I didn’t think I was competent for drawing good speciﬁca— _‘
tions. That is as near as I can state it.” .;

He was cross—examined about this, and he testiﬁed (p. 927) :—

“I always considered myself not competent to make good speci—
ﬁcations and drawings.”

Finally, not content with that, they introduced the testimony of
an expert as to Drawbaugh’s qualiﬁcations. Mr. Park Benjamin
testiﬁed (defts, ii, 1270—1) as his opinion, derived from daily inter-
course with Mr. Drawbaugh for several months, that while—

" there is no parallel instance in the whole world of invention, at

least so far as I know it, of any one having accomplished a more
biilliant and extraordinary series of original discoveries,”

nevertheless, his attainments are——

"wholly inadequate to enable him to use the exact and precise terms

necessary in a patent speciﬁcation.” . . . ,
“ From all I have learned from him I do not believe that he could ]

properly write a patent speciﬁcation.” '

thether he could or not is one question; but the material ques-
tion is whether he believed he could.

This elaborate attempt to explain away the condition in which the
interference testimony had placed him is, in substance, a falsehood.

The Court knows that Drawbaugh’s counsel would not have called
upon him and Mr. Benjamin to swear as they did if Drawbaugh had
told them of these advertisements. He would not have sworn as
he did if he had thought we should ﬁnd them. His testimony about
this is a lie,—deliberate, thought undiscoverable, originating in his
own heart, for his own gain, believed important toward his success.

But that side of his card is by no means the most important. It
styles him " inventor,” and refers to the “ other side.” The other 1
side of this card, publishc-d not earlier than June, 1874, is as fol-
lows : —

DRAWBAUGH A MAKER OF ELECTRICAL APPARATUS. 199

36¢

11 can be

TRIH
AG

aucet. very extensivly used.

CAR PET RAG

evrce: by which 111
without Needle or

USEINGRNQ

0.4L VﬂJVIC‘ .BﬂTTER 1".

12M

11?

‘ nopod qutck 21ml 11m

Thread.

LIOOPERu Am
a
enumerate emote.

QWIIRIG EAIWI
& Shingle Cutter.

cry.
mma MAGHINE,‘ 1mm use.-

gs :u'

at
A
2
91
“a
z
3:1
.5
E
In
('2

0'
25

, ROTARAY & OTHERS.

MAe

AEHETO ELEB

,' Headin

e1 Maehin
2G ives enti re satisfaction I

Igclrctulic 12am.
TH E DRAWVBAUGII Rota‘rv Item

313353 VOILE;

For short line’t‘clegraphing. Fire Aim.

and Propelling Electric Clocks.

applied to any form of Electric movenmnt.

@Far SIMPLIGITY ithas ND RIVM

PUMPS
I

GTAVE J0l
Tm: ‘

ing F

Stave
a
d

Barr

Here is the list on which, at least as late as the summer of 1874,
and probably later, a period at which they pretend that F and B and
C and I, and even A, existed, he wished to rest his claim to be con-
sidered an " inventor,” and the telephone is not among them. It was
not a list of things patented, as will be seen by a comparison with
the list of his patents (p. 212, infra) ; he cannot escape on such a
verbal quibble. hInny of his witnesses use the word "patent,” or
“ patent rights,” as the equivalent of " inventions ” ; e. 9., Zacharias
(defts, i, 56), " We talked about his negligence in not ﬁnishing up
these patent rights.”

The type with which this card and the following billhead Were
printed was bought by Holsinger about June 1, 1874. Holsingei‘s
newspaper of May, 1874, is printed in his old type and his June
paper in his new. Drawb-mgh lent him $5.00 towards it. Hol-
singer printed for Drawbaugh sever 11 times between that date and
the time he left Eberly’s Mills in November, 1876, and does not
remember when each job was done (complts, ii, 1211—13). Dra'v-
baugh does not remember {vhen Holsinger printed the ‘billhead
(defts, ii, 996). .

The defence have not dared to put Drawbaztgh on the stand to
attempt to explain away this, or to expose him to cross-examination
about it.

Conp’ed with this publication is the fact that Drawbangh, in 1874,
exhibited to various skilled persons, among whom were the telegraph

200 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

superintendents of the Pennsylvania Railroad and the Northern Cen-
tral Railroad, his clock and his magneto key, but not any telephone.

If there is any real answer to this, it is not to come by adroit sug-
gestions of counsel ex post facto. It is a fact in his history; it is a

consequence of some other facts; and if any exist which led an in—,

ventor of a then completed telephone to the publication of such a
list, and to the doing of such acts, they can be proved. The defend-
ants have called three hundred and sixty-six witnesses, but as to
these matters they make only the defence of the ostrich; there is no
reference to this in their whole record.

The answer alleges that Drawbangh was in " utter want of proper
mechanical tools, materials and appliances” to make telephones.
At a time, which was between June, 1074, and November, 1876
(Drawbaugh, defts, ii, 996), Holsinger printed for him the fol—
lowing - —

ye _ ______
Gym, “@ﬂam ﬁnawaaeey,

PRACTIC AL MACHINIST.

Small Machinery, Patent Ofﬁce .M'odels, Electric .Mcwhines (5‘0. a speciatty.

#gW/ %, @1._.____._____.____.__,___.,___. /y/

We can believe that he did not show either the card or the bill—
head to his assignees, when he sold them his pretensions, and gave
the information on which it is to be supposed they drew the answer.

Early Newspaper Publications about him. — Drawbaugh was by no
means an unknown or unnoticed person, though never known or
noticed as the inventor of the speaking telephone.

In 1868 and 1869, he exhibited at the Slate fair at Harrisburg,
—-but not a telephone (complts, i, 458).

E. R. Holsinge1, one of his most conspicuous witnesses, and who
printed the foregoing card, had been and now Is a printer and editor
of a small country newspaper, and while living at Ehelly’s Mills,
from September, 1873, to December, 1876, occasionally wrote arti-
cles for the county paper. After he had testiﬁed for the defence we

< ALL... “drain...

EVENTS or 1876. 201

ascertained this fact, and, calling him for this special purpose, proved
the articles he wrote (complts, ii, 1210—20). One article of local
news about Eberly’s Mills was published Nov. 5, 1875, another Nov.
12, another Nov. 16, and another Oct. 27, 1876. One of them
refers to Drawbaugh and the work done at his shop. No other arti-
cle by Holsinger refers to him or it. This article, Nov. 16, 1875,
contains the following (compits, ii, 1216, iv, 401) 2——

“ FROM EBERLr’s MILLS .

" AXLES. — We have the pleasure ofannouucing to the wide world
that our Milltown (Eberly’s Mills) has now the new axle factory,
established in the old machine shop at this place by a company of
four live and energetic members, one of which is our friend, \Vilson
.Bear, of Camp Hill, a: general business manager, and M. N. Grove,
of Harrisburg, as corresponding secretary. They make the Kline
Conical Compensating Axle, a new invention of hlr. Kline's, of
Camp Hill. We wish them every success, for we think it is a very
good improvement in that line.

" 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 things not dreamt of by every one, and
will be a great credit to the nation for its wonderfulsimple workings
and great convenience.”

Yet the Court is expected to believe Holsinger, who says that all
the time he knew Drawbaugh the latter worked " steadily, intently,
never lost a moment,” and that the witness never knew of his works

ing on any inventions except telephanes and a magneto machine.

Events of 1876. — Drawlmugh was not bashful about blowing his
own trumpet. He had advertised himself as " Inventor,” and shown
in what little contrivances rested his title to the glory attached to
that name. In 1878 he furnished his own biography (p. 223,
infra), which opens with the statement that he is " a genius of whom
the country [county ?] may well feel proud.” On these occasions he
did not say that he was the inventor of the telephone, and the Court
is not told of any reason for the omission, except that he was not the
inventor.

In 1876 Mr. Bell won his fame, and Drawbaugh knew it; how did
he behave under it?

Before the close of that year we know that Drawbaugh (like many
others) was experimenting with telephones. W’hat instruments

202 BRIEF FOR COMI’LAINANTS ON FINAL HEARING.

did he use? We have seen the sequence and relative merit of his
instruments (p. 152, supra), and if, after the Bell patent came out,
he was using the rudimentary tin can B, it is certain that his story
is false, and any pretensions which can sustain this suit are unfounded.

We have already referred to the proof by the defendants’ Witness
, Springer, which Drawbaugh substantially admits, that F and B were
in habitual use during a period which began after the Bell patent
was a month old (p. 177, supra). This disproof of all the other
instruments alleged is disproof of the defence.

Drawbaugh testiﬁes that he went to the Centennial in October,
1876; and some time before that, he does not know how long, he

.heard that some one had invented a speaking telephone (ans. 391,

defts, ii, 858). " In the summer of 1876, some person told me, or I
may have read it; but I think that some person told me” (x-ans.
1381, p. 1048).

What he heard or read was (ans. 1382), “ That some other person
or party had gotten up a telephone and had it on exhibition at the
Centennial,” but he does not know where he heard or read it. There
were certainly two newspapers which he had access to during that
time. His friend and next-door neighbor, Holsinger, wrote at times
for the C’arlz’sle Mirror,and therefore had the paper, and the ZlIt'rror
of Aug. 1, 1876,statcs that Prof. Bell had eonversed over 1,000 miles
of wire. He frequented the shop of Mr. Shapley at Mechanicshurg,
and Shapley took the Scientiﬁc American, and Drawbaugh was in the
habit of going there to read it (Shapley, complts, i, 598). The Scien—
tzﬁc American of Sept. 9, 1876, describes Mr. Bell’s invention and its
results, and describes the instruments as made of tin cans and mem-
branes (see the article, defts, exhibits, p. ; app. 418). If
Drawbaugh’s story were true this would have aroused him and all
friends to proclaim his rights.

Holsinger’s 1876 publication is of peculiar weight. The story is
that Drawbaugh had then Worked ten years on the telephone and had
got what is alleged to be a perfect instrument (H), asserted to be
almost the same as the Blake transmitter now used all over the
world. He had, so they say, preceded this by two pair of highly
organized and ﬁnished magnetos (D E, and L M), and two pair of
highly organized and ﬁnished hard carbon microphones (L M, and

EVENTS OF 1876.—MR. SHAPLEY. 203

Gr 0). (See this, p. 179, supra.) Mr. Bell became in that summer
famous for the greatest invention of our generation, and Drawbangh

heard of it. The reports of it were in the Scientiﬁc American, which
Drawbangh lead, and in the Carlisle Mirror, which his neighbor
Holsinger undoubtedly took, because he wrote for it. Holsinger
knew all that Drawbaugh had done, and had been his most intimate
friend and co—experimenter, so he pretends, for three years upon the
telephone. He states their absorption in it in terms which can
hardly be intensiﬁed. It was not in human nature that the report
of Mr. Bell’s glory should not have wrung from these men—the
one in his own behalf, and the other on behalf of his friend—the
assertion that ﬁfty times as much as Mr. Bell was praised for had
been accomplished years earlier in their own little community by
Drawbangh, whose praises Holsinger had once sung about his clock
in the Carlisle [Mir-Tor. It is not Within the possibilities of life that
a man ever connected with a newspaper, as Holsinger has been,
should not have communicated such a sensational article as these
facts could have produced to any paper that he had; Presently he
did sit down and write an article for the Carlisle Mirror (Octo-
ber, 1876), but all that he had to say was that thecow of one
farmer died, the pig of another been sick. and the horse of a third
run away. Against such facts, no Court can believe the witness or
believe the story.

Illr. Rufus E. Sbapley, of Mechanisburg (complts, i, 416; app.
416), jeweller, watch and clock dealer and repairer, Was a man of
education and intelligence. and considerable means. He had a couple
of thousand dollars by him, which he was disposed to invest in some
invention, and the one Drawbangh asked him to invest in was the
clock. They made a provisional written agreement touching the
clock, dated Nov. 8, 1876. Drawbangh had previously carried his
clock to Mr. Shapley’s store, set it up, arranged for it the earth plates,
which Mr. Shapley paid for and produced the bill of. ' Mr. Shapley
built another clock like Drawbaugh’s With a View to test it. The
clock turned out to be worthless, and ultimately nothing Was done
about it. Before they made this agreement or moved the clouk, Mr.
Shapley went to Drawbaugh’s shop, more especially to see the clock,
and was accompanied by his brother-in-law, Isaac D. Landis, also a

204 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

watchmaker and jeweller, who had left his own home for a fortnight
and was paying a visit to Mr. Shaplcy. The date of this visit to
Drawhaugh’s shop is absolutely ﬁxed as in October,'1876, by Mr.
Landis’s books showing his absence, by the recollections of himself
and Mr. Shapley, and is not denied by Drawbuugh.

At this visit Drawbangh showed them an instrument which he said
was going to be of great importance. It was B; he did not use it
nor offer to use it. It then had the membrane on it (ans. 24, complts,
i. 589) ; this proves that the better instruments which superseded it
and drove it to the garret had not been made. One cannot but note
that the instrument shown to Shapley in October—a tin can — was
the counterpart of that attributed to Bell in the Scientific American
of September. Somewhere about the same time Mr. Shapley, who
took the Scientiﬁc American, showed to Drawbangh the number for
March 7, 1876, which had a description by Dr. Van der VVeyde of
the Reis telephone; the article said that it would transmit musical
sounds, but would not talk, being a circuit-breaker. Drawbaugb says
that Mr. Sliapley pointed out the article to him‘and gave him the
paper, " and told Wm that was something of the nature of the machine
he was working at then” (Drawbaugh, defts, ii, 1094). Drawbaugh
produced from his shop the identical newspaper, and put it into the
case (defts, ii, 1094).

These facts are convincing. Drawbangh was on such terms with
Shapley that long before —he thinks as early as the time of the Faucet
Company,—— he had borrowed Shapley’s gear cutting engine, and kept
it several years (Drawbaugh, ans. 1103, defts, ii, 995). Drawbaugh
had now heard of Mr. Bell’s invention (defts, ii, 858), and, doubt-
less, Shapley, taking the Scientific American, had also. Draw—
buugh’s answer, just quoted, shows that Mr. Shapley’s attention had
previously been drawn to some kind of a sound transmitter Draw-

baugh “ was working at then.” Shaplcy had seen it at Drawbaugh’s

shop; there was no reason for concealmenthand no suggestion of
any; yet what was shown him, and all that was shown him in Octo-
ber, 1876, was B. The fact that it then had the membrane on proves
that the better instruments which superseded it, and drove it to the
garret (p. 154, supra), had not then been made. Yet one result of
all this was that, according to Drawbaugh’s own testimony, the Reis,

THE TIN CAN, B,‘ WAS THE BEST IN 18764. 205

which would transmit pitch but not speech, seemed to Shapley
" something of the nature of the machine Drawbaugh was Working on
then.” And another result was that, ﬁnding this friend, with $2,000
ready money, he urged him to put it into an untried clock, and never
suggested the telephone. Nor is it probable that when the Reis inar-
ticulate instrument was shown him as the best thing known, in March,
1576, he would not have asserted that he had invented, constructed
and used admirable speaking telephones long before, nor that the re-
ports about Bell should not have made him show Shapley all that he
had done. These facts are mostly proved by Drawbaugh’s deposi—
tion; Shaplcy is supported by Landis, and contradicted by no one;
Drawbaugh, telling this in his testimony, does not intimate that
he ever asked Shapley to invest money, or to listen at a telephone,
nor was there any intimation in Shapley’s cross-examination that
Drawbaugh had a diﬁ'trent recollection. Yet the defendants wish
the Court to believe that Drawbaugh then had the good magnetos D
and E, which needed no battery, and could have been taken to
Shapley’s store every evening and used (Drawbaugh then lived in
Mechanicsburg), and the microphones G and O'and L and M and

H, —the best, and, indeed, the only usable ones he made up to the
time of this suit, ——-and never even disclosed their existence to Mr.
Shapley. Such facls coming out of his contact in such relations, with
a man of means, of intelligence, and of fiiendly disposition like Mr.
Shapley, are worth more than the “ best of my recollection” of all
the farmers the defence has called.

Mr. 0. A. Lamb's, a brother of Mr. I. D. Landis, was employed
by Mr. Shapley from the beginning of 1877, and made a visit to
Drawbaugh’s shop, and Drawbaugh showed him B. Mr. C. A.
Laudis’s deposition is of particular importance in one respect.
Drawbaugh showed him a coutrivauce which appears to have been
the same as the little bent piece of tin now on B, and told him in
substance that it was a circuit—breaker. There is some other evi—
dence in the case which directly conﬁrms that statement; if he was
using a circuit-breaker, there is an end of the matter (for all this see
app. pp. 416—423).

Henry S. Rupp testiﬁes that he went to Drawbaugh’s shop early
in 1877 and listened at a telephone, and that it was the tin can

206 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

instrument B. For this very important witness, see infra, and app;
435.

Jacob H. Grissz'nger, now dead, made an aﬂidavit, ﬁled in the
case among our preliminary papers, and virtually admitted by Draw-
baugh, in his cross-examination, to be correct, which says, in terms,
that he talked with Drawbangh about telephones in the fall of 1876,
and became satisﬁed, from talking with him and reading about Bell
in the newspapers, that Drawbaugh was only “ trying to do some-
thing which another had already accomplished” (app. 424).

Proposed Centennial Exhibition—The story is that he made D and
E, which are really good and practical, though rather feeble, instru-
ments, in February, 1875; the effect; of the evidence, if all be ac-
cepted as true, is that he had the ﬁnished microphones L and M,
and G and O and H before September, 1870'; that he believed the
speaking telephone to be the greatest invention he had ever known
of, and that it had been his absorbing thought for ten years. In the
fall of 187.3 and spring of 1876 he proposed to exhibit at the Centen-
nial—what? It would seem that one would hardly doubt. But, in
fact, what he proposed to do was to go to work and construct an
electric clock for that purpose; and he did make one, after the time
when he says D and E were ﬁnished, and proposed to exhibit it.
This is not a matter of doubt. His mast intimate friend, Holsinger,
so wrote in the newspaper Nov. 16, 1875; Drawbangh said so to
Hamme in March, 1876, showing him the clock he was " then work-
ing on” (detts, iii, surbtl, 326. x-ans. 33), and to Cowens two
months later (to. 703 ; see these in app. 668). Afterwards he heard
the fame of Mr. Bell’s exhibition; he went to the Centennial; he
might have taken D, E, and L, M, and G, O in his pocket, but
he did not; he did not even mention them to his old neighbor and
travelling companion, George Leonard.*

Think of the possessor of three pairs of good speaking telephones

* There is a suggestion by Shopp (defts, i, 405; app. 111), that Drawbaugh had
got some Mechanicsburg men to go in with him on the telephone, and was going
to exhibit it at the Centennial. The newspaper and other witnesses Show that it;
was clock, not telephone, which was referred to by Shopp. In fact, it was clock
that the Mechanicsburg men proposed to put their money into.

DRAWBAUGH PUBLICATIONS or 1878. 207

so behaving! Does not this add absurdity to the enormity of this
falsehood?

Events and Publications 0f1878.—VVe now come to the im—
portant events and publications of 1878. The telephone had
assumed great importance in the community, but Drawbaugh’s
thoughts and efforts were on the clock, and in April, 1878, he g .1:
Jacob E. Shettel, Theodore Grissinger and Jacob Grissinger to
become partners in the clock enterprise.

Early in 1878, ——January, February, March and April, ——~four or
ﬁve newspaper writers visited Drawbaugh’s shop and wrote lauda-
tory articles about it and him. In each case they were attracted by
hearing of an electric clock he had constructed, run by earth bat-
teries. The invention is an old one (complts, ii, 1381), but such
clocks do not keep good time, owing to the variations in the current;
and they have gone out of use. Whenever it is revived, however,
it attracts attention. Each of these Visitors saw there speaking tele-
phones, Which was natural enough, because hundreds of people were
experimenting to improve them. But the writers either make no
mention of telephones, or mention Drawbaugh in connection with
them as an iinprover and not as the originator. In 1878 Mr. Bell‘s
invention was not only an assured commercial success, but its appar—
ently certain proﬁts had the usual result in attracting attention and

drawing inventors to that branch of industry. The defendants’ ex-
pert (Mr. Benjamin) states that the telephone inventions patented
in 1878 exceed thirty-three, and in 1879 (largely of course on
inventions of 1878) exceed sixty—ibur (defts, ii, 1260). To speak
of a man in 1878 therefore as making a “ new” telephone, or even

as making a telephone, or inventing a telephone, in the present
tense, excludes all idea of claim that he was the inventor of the
telephone.

Three of these writers— H. R. Mosser, who wrote in the Balti-
more American of Feb. 2, 1878 (complts, i, 367), a writer, not
named, who wrote in the Harrisburg Telegraph of Feb. 1, 1878
I (ib. 386), \Vorley, with whom was Lloyd, who wrote in the Har-
risburg Telegraph of Feb. 13, 1878 (complts, ii, 1551; iv, 338),
made no mention of the telephone, but dwelt on the clock.

208 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

Some of these writers have been called as witnesses for the com-
plainants; the defendants have called none.

H. R. Mosser (complts, i, 367) testiﬁes that for many years he
had run a sawmill and a planing mill at New Cumberland, three
miles from the claimant’s shop, and had long known him; that he
wrote the article to give Drawbangh a friendly putt“; that before
writing it he visited Drawbaugh’s shop; that Drawbaugh then
showed and fully explained the clock; that Drawbaugh showed the
tin-can instrument B, but none others, and spoke, very brieﬂy,
however, to the effect that he had worked somewhat on telephones.
Mr. Mosser says that if Drawbaugh had intimated that he was the
ﬁrst inventor of the telephone, it would have been mentioned in the
article.

Messrs. Lloyd and Worley, two school teachers of IIarrisburg,
having read in the Harrisburg papers of Feb. 1, 1878, a mention of
Drawbaugh’s clock, went to the shop to see it. Lloyd was an old
friend of the claimant’s, had long known of his clock and other inven—
tions,'but never of any telephone. They, or, rather, Mr. Worley,
thereupon published in the [Ictrrz'sburq Telegraph of Feb. 13, 1878,
a very laudatory article about the clock. Both of them (complts, ii,
pp. 1264, 1551) testify that at that visit telephones were mentioned,
but not talked through, no hint given that Drawbaugh pretended to
be the originator, and that, if such an intimation had been made, it
would have been referred to in the article. On the contrary, the
statements made as to the character of the sounds produced show that
satisﬁtctory articulation had not been reached. ' Lloyd testiﬁes that
Drawbaugh said (complts ii, 1271, ans. 60) “ that the sound produch
a kind of back lash, and that he intended to control it by some
means that I cannot describe to you now.” Worley testifies (27). ii,
1554) that he had oftvn heard of Drawbaugh as an inventor and as
the maker of a number of things which he named, but never of a
telephone; that at this visit they spent three hours at the shop, and
saw a number of contrivances there (eomplts, ii, 1554) : ——

"A. 17. In speaking of the applications of magnetism, he was
experimenting for the transmission of sound; but, while he could
produce sound, it was indistinct and confused, and he thought of
remedying that by receiving the sound in a box to which he could
apply the ear.”

DRAWBAUGH AN IMPROVER BUT NOT AN omemaron. 209

Drawbaugh was cross-examined about this, and did not deny the
facts (detts, 1i, pp .1082). But he did saytliat he had read an arti—
ele 111 another paper in which the writer, de~eribing and exhibiting
an apparatus that would not talk, " thought it might be got at by
properly arranging the walls of the box and destroying the reﬂec—
tion” (defts, ii, 1095).

Three articles of this period refer to telephones in terms which
imply that Drawbaugh’s real connection with them lay in the im—
provementshe was then inventing. The Alec/tnnz'csbnry Saturday
Evening Journal, of April 6, 1878, after speaking of the string tele—
phone then in use, says (the italics are ours) (complts, iv, 398) :—

" \Ye have been informed that Daniel Drawhaugh, the celebrated
mechanic of Eberly’s Mills. is inventing a telephone on a ditlerent
plan from that now occupying the attention of scientists, which will
produce the sounds louder and plainer than t/ze mot/Aer invention.”

The l\Iechanicsl1urg Independent Journal of April 17, 1878, after
describing Drawbaugh’s shop, says of Drawhaugh (complts, iv, ex—
hibits, 399) :—

"' Among some of his best productions are nail machines, faucets
and electric clocks. . . . \Ve are nude or obligations to him for
much inf'101m1tion in general, and telephones in particular, and the
Imlqaent/ent Jommtl will be glad to annou nee the completion of the
new telephone he 1s"n'1w const1ueting, and hopes the speaking machine
will b1ing many doll [rs into the pockets of its ingenious 1m entoi.”

111ec/zmucslm1’q Aewspupers about Drawonuf/lz in 1878. "About
April, 1878, liocgatclloi and Long visited his shop, and their visit
resulted in the article in the Mecl1auiesl1urg newspapers of April 17,
1878. Roekafellow’s article and the facts of his Visit were stated
in his afﬁdavit ﬁled with the motion for injunction. Drawbaugh,
upon cross—examination, admitted so fully the substantial accuracy
of the description of the interview as stated in the article and
affidavit that it was not necessary to call these two visitors (Draw-
baugh, defts, ii, pp. 1079-80, x-ans. 1526—7). The statement was
that Drawbaugh said lie thong/1t he had discovered {7&6 principle of
t/ze telep/toneprtor to Edison, but Izod not as yet made it a mechan—
ical success. The record has the following (defts, ii, 1079) :—

(" Mr. Hill reads the following extract from the afﬁdavit, and calls
the attention of the witness to it : —-

210 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

"At that time Mr. Drawbauy/i, exhibited his telephone to me on
tr/ttc/z ire claimed to be met/.2721] experiments, and said he thought
that he had discocewd t/Ie princrjﬂes ryt'tlze tettpiimte prior to Edison,
but t/zat lte had not as yet made it a mechanical success, — and was
yet to make improvements on it to make it practicable, _ a result
he 72¢th not yet attained.”

Answer by Draw haugh.

“ Well, I may have said that, because I was working to get louder
results; I know I made that remark often; and he appeared to be
satisﬁed with the result, — the tenor of his conversation; I don’t re-
member the words.

“ The remark above referred to as one that I often made was that
I was improving it to get better results.”

The force of this is intensiﬁed by the fact that three dag/8 afterwards,
under the redirect examination of his own counsel, in a desperate
attempt to getaway from this confession, he said (it). ii, 1110) :—

“Idon’t remember, you know. the particulars of that or nversa-

tion. . . . I don’t see why I should say it was at a mechanical sue-
eess, becauseI had it in use and even he heard through it and

appeared to be perfectly satisﬁed.” [This was in 1878.] I

Doubtless Drawbaugh read this article at the time. He testiﬁes
e'very likely I did, but I don’t remember.” It offered the columns
of the paper to Drawbaugh. Soon after Drawbaugh went to see the
editor (eomplts, i), but it never led to an article announcing Draw-
baugh as the ﬁrst inventor. “'ould not the editor, repeatedly pub-
lishing items about Mr. Bell, have seized the opportunity of the
sensation he could produce by proclaiming the true inventor, if any
such intimation had been made by Drawbaugh?

The Harrisburg Telegraph of April 18, 1878, says (it). 388) :—

"Dauiel Drawbaugh. of Eberly’s Mills, the mention of whose
wonderful clock was ﬁrst made in the columns of the ’J'elegrap/t
some time ago, is now engaged in the construction of a new tele-

phone. It' it is is great a success as the clock, Mr. Drawbaugh can
be congratulated.”

All these papers had published numerous articles about Bell and
his invention for a year or more before.

Mr. James P. illattttews, one of the editors of the Baltimore
American, visited the shop about April, 1878, and publirhed a long

DRAWBAUGH’S ADMISSIONS IN PRINT. 211

article ahout Drawhaugh and his work in the paper of Nov. 28,
1878. He devoted nearly all of it to the clock, but concluded it
with the following (it). 329) :—

" It may he mentioned that Mr. Dlawhaugh constluctcd a 1111le
telephone long hefo1e Edison loomed 11p as the ‘ hoss’ inventor. He
never expected to send articulate sounds over a magnetized wi1e,
but he h1lieved that an alphabet could be airanO'ed after the manner
of the musical scale, and that messatrcs could be transmitted and
1111(le1sto111l by the variations of tone and pitch. This unlette1e1l
count1y mechanic came vely near anticipating Edison and b1 ll 111 the

invention of the telvpl ione Nothing hut his poveltv pievented him
ﬂom conducting his expeliments to a successful Issue.”

A copy of this was sent to Drawhangh (defts, ii, 1075, X—ans.
1517), but he never complained of it.

This is the only piece ofpaper in the world which ever hinted that
Drawhaugh thought of the subject of the telephone before it was
known in the community from the invention of others.

They are plainly fatal to the case.

This publication by Mr. Matthews would be sufﬁcient without any
deposition to support it, but Mr. Matthews’s own deposition (complts,
i, 540) is of the highest value. He had been a schoolteacher; prac—
tised law four years (X-ans. 24) ; is now connected with the Batti-
more Sim, and in 1878 was managing editor of the Battimore Amer-
ican, the principal paper of that region. He read in the Baltimore
American, Mr. Musser’s article of Feb. 2, 1878, and that incited him
to take ajouruey of a hundred miles to Drawhaugh’s shop, of which he
says (ans. l8), " my object: was to get material for a striking news-
paper article.” IIis visit was the last part of April or first of May,
1878.

“ A. 11. I went there to see his clock, and I intended to write it
11p as favorably as the facts would warrant.”

He never met Drawbaugh 01' had any communication with him

except on that occasion (ans. 58, p. 551). IVhile there no talk was

carried 011 through a telephone, nor did he see any telephones com-
pleted and in working order. He did not see II, but Drawbangh
showed him

212 BRIEF FOR COMI’LAINANTS 0N FINAL HEARING.

" two small hemispheres, to each of which there was a wire attached,
and told me that he had been experimenting with the telephone.
He showod me no other apparatus except these pieces.”

Any of the small black-walnut instruments, although not exactly
hemispheres, would be enough to leave that impression on his mind.
He says that he was not satisﬁed with the description he obtained of
the clock, and did not write the article at once for that reason.
Apparently the most which Drawhaugh instilled into hismind was,
that this clock, by electricity from the earth, would run forever,
and was therefore as near a perpetual—motion machine as could be
got. He says that when afterwards he read of the Gary motor,
which professed to be a perpetItal-motion machine, " I supposed that
the principle of the Gary machine was the same that Mr. Draw-
baugh had tried to explain to me, and I meant to set up a claim of
priority of invention for him ” (ans. 26, p. 546).

A telephone was spoken of in such a Way that he asked Mr.
Drawbaugh to show him his telephone, and he did not show him H,
but what he remembers as two small wooden hemispheres, which he

thinks were about three inches and a half in diameter. He testiﬁes

(eomplts, i, 547) : ~—

“A’ Q. 38. Do you mean that he had thrown those two hemi—
spherical instruments entirely aside?

“Yes, sir.”

”X Q. 41. Suppose you were informed that, out of over a hun-
dred witneSses examined in this case, a very large number had testi-
ﬁed in substance that, prior to your interview with Mr. Drawbaugh,
and even prior to the year 1876, they had actually witnessed the
sending of articulate sounds over a magnetized wire at Mr. Draw-
baugh’s shop,— had sent such sounds and had heard them when sent by
others, —- and that among all the witnesses who had ever been atthe
shop, not one had testiﬁed of an alphabet being arranged after the
manner of the musical scale, or of messages being transmitted and
understood by variations of tone and pitch; in View of such infor-
mation, would you feel conﬁdent that you had correctly under—
stood or remembered Mr. Drawbaugh in the matter referred to in
the quotation which I last made from your article?

” [Question objecled [0 by Mr. Stem-ow, because it asks the opinion
oft/re witness on mailers alleged, but not toil/tin his knowledge, and
because it does not state (be mmzyfacls and circumstances which {brow
discredit upon the testimony referred to.

“ 1111*. Hill objects to [be last clause oflbe objection going upon the
record, because tmiccm’anlcd by any/facts in the case]

J. P. MATTHEWS—DEPOSITION AND ARTICLE. 213

"A. Mr. Drawhaueh never told me that he had an instrument
that would transmit messages in the way mentioned, but that was
the theory upon which he had Worked. I have no information what-
ever on the subject, except that derived from my conversation with
hIr. Drawbaugh. He did not tell me that he ever had sent articulate
Sound over a magnetized wire, or that he had an instrument by
which that could be accomplished. As'to weighing my recollection
against the testimony, that is a judicial question which I cannot au—
swer. When I wrote the article I was trying to state the use as
strongly in favor of Mr. Drawbaugh as my recollection of his con-
versation would permit.

"X Q. 42. Then I will ask you this question: Are you entirely
conﬁdent that in the matter referred to in that quotation you readily
understood Mr. Drawhaugh as he meant to be understood?

"A. There were two things that we talked about that day,—the
clock and the telephone. The clock receiVed by far the most atten-
tion. I cannot remember that any other instrument was mentioned
in connection with the telephone. We talked abmt the claim of
priority of invention, and mentioned both Bell and Edison. Mr.
Drawbaugh told me that the idea ofthe telephone was not ﬁrst sug-
gested by either of them. He did not set up any claim as being the
discoverer himself; he said he had ﬁrst read about it in a translation
of some foreign publication.

“ X Q. 43. That does not quite answer my question, which was,
Are you conﬁdent that you understood Mr. Drawbaugh correctly in
the matter referred to in the paragraph quoted, or may you not have
mistaken his meaning?

“ A. I gathered from the previous question, that Mr. Hill sug-
gested, whether we may not have talked of other instruments in
connection with the telephone, and that I may have applied portions
of the conversation to the telephone, which, in fact, related to another
instrument. In response to that part of the question, I said that I
did not remember that we talked of any other instrument in connec-
tion with the telephone. I cannot pass any opinion as to the accuracy
of mv recollection.

“ X Q. 44. You did talk, in that conversation, about a foreign
publication; and you did, in that conversation, get an idea of the
use of the musical scale, and of transmitting messages by variations
of the tone and pitch, did you not?

" A. Mr. Drawbaugh didn’t say anything about a musical scale.
That is my illustration of the theory which he was trying to explain
to me. There was some remark made about a ﬂiroign publication.
It was merely incidental. I knew nothing about it myself.”

“If Q. 48. Was there talk about messages being tran~mitted by
varying the tone or pitch?

“ A. There was.

" X Q. 47. Was there talk about the transmission of music?

”A. There was not.

214 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

" X Q. 48. Was there talk about an alphabet being arranged like
a musical scale, so that variations of pitch would indicate different
letters?

"A. Mr. Drawbaugh did not go into any details. We merely
talked about the theory. I cannot remember that anything was said
about an alphabet.

“X Q. 49. Did he say anything about having experimented in
the direction of the telephone prior to Edison and Bell?

"A. He did. He talked of having entertained this theory for a
long time. and of having experimented years before.

“X Q. 50. Did he say that he never intended to send articulate
sounds over a magnetized wire?

“A. He did not use that language at all. The sending of articu-
late sounds was not in his theory, as I understood it; that is, in
the theory he was explaining to me. He may have had other theo-
r1cs.

“X Q. 51. This theory that he was explaining to you was the
one which he said was ﬁrst enunciated in the foreign publication,
was it not? _

“A. No; what he said about the foreign publication was, that it
was the idea of the telephone.

"X Q. 52. Would you remember the name of the foreign sci—
entist if you heard it?

“A. No, sir; he didn‘t mention any name. I think he said it
was a translation from the French. I am sure he said so.”

This was in the spring of 1878, when Mr. Matthews’s paper, like
others, was full of articles about that wonderful invention, the tele—
phone. He spent a whole day and journeyed a hundred miles to

get material for a striking newspaper article to be written in the praise
of D “awbaugh. They talked about the telephone, about Draw-
baugh’s experiments in transmitting sound, about Bell and about
Edison, and about a foreign publication, and about priority of inven—
tion; and the most laudatory and striking thing which Mr. Matthews
could write from what Drawbaugh told him was, that Drawbaugh had
experimented somewhaton the transmission of sound before Bell and
Edison. and might have accomplished something‘if he had been bet—
tc- able to experiment, but he never reached the transmission of
articulate sounds, and they were not within his theory. This does
not stand alone. It comes in right along with all the statements
which the claimant made to several newspaper writers and others
during that spring; it exactly agrees with them, and it accounts for
ten years of his conduct. What has he to say to this? After Mr.

J. P. MATTHEWS :—DEPOSITION AND ARTICLE. 215

Matthews testiﬁed the defendants called two hundred and ﬁfty wit-
nesses, but they did not put Drawbaugh on the stand again. That
is not all.

Mr. Matthews made an aﬂidavit, ﬁled with our moving papers in
this case along with a copy of his article (complts, iv, exhibits 325).
This afﬁdavit was made only about two years after his Visit, when
his memory was therefore fresh. It agrees with his deposition, and
states that his article substantially embodied the ideas and impres-
sions which he obtained from Mr. Drawbaugh. Of course it did;
he had no means of obtaining others, nor any motive except to set
forth Mr. Drawbaugh in the mest favorable light. The part of the
afﬁdavit about the telephone is as follows :—

" While at Mr. Drawbaugh’s shop I had some conversation with
him about the telephone, which had recently come into general
use. He showed me one or two hollow wooden hemispheres, which
Constituted a part of the apparatus, with which, he said, he had been
experimenting in the transmission of sounds by means of a magnet-
ized wire. The apparatus was not then in operation, and I under—
stood from him that he had not been using it fora considerable time.
There was no telephone on his premises at that time, as far as I
could see, and he made no mention of having any such instrument,
except the detached pieces as above stated. He said that the idea of
transmitting sounds in this manner was not new, and that he had
some years befme read of it in a scientiﬁc publication translated
from the French. Mr. Drawbaugh did not claim that he had ever
transmitted articulate sounds with this apparatus, and the idea that
he conveyed to me was that he expected to send messages by means
of an alphabet founded upon difference of sounds; that is, letters
and words were to be indicated as notes are indicated on the musical
scale. Mr. Drawbaugh did not set up any claim to be considered
the original inventor of the telephone, and my recollection is that
he denied the right of Bell to be called the inventor on account of
the publication already referred to. My interview with him lasted
more than an hour. I informed him that I was one of the editors of
the American, and that I intended to publish an account of my
visit.”

Upon the cross-examination of D 'awbangh, the Matthews article
Was put into his hands (defts, ii, 1075), and the Matthews afﬁdavit
was put into his hands (ib. 1077), and he was asked to point out
Whether there was any statement in them which was not correct.
“’ith reference to the article, and after repeated requests to state

216 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

everything that was not correct in it, be, though with small recollec-

tion of the interview, says that he thinks Mr. Matthews did not cor-
rectly describe some of the details of the construction of the clock,
and then (p. 1076) :—

"XA. 1520. . . . I will mention I do not like to criticise too
much; I don’t think it is quite just; it was a friendly visit, and I
think he was ignorant of some of those expressions here.

“X Q. 1521. I wish you to mention all the statements which
you think are erroneous, whether you think it just to do so or not;
if there are any other statements which you think are erroneous,
please point them out.

“ A. Here is, I suppose, a little mistake; I don’t suppose it was
intentional either: ‘He never expected to send articulate sounds
over a magnetized wire’—that would be erroneous there. That is
all.”

Then the afﬁdavit was put into his hands and he was asked to
point out any errors he could discover, and he says (1077) :—

“ A. 1523 I won’t say as to the statements—portions of it may
be correct ; the afﬁdavit says: —

‘ IIe showed me two hollow hemispheres which constituted a part of
the apparatus.’

" Now I am conﬁdent I never had any instruments got up in that
Way; I am perfectly positive; I didn’t have instruments constructed
in that way; I may have shown telephones; I don’t remember of
speaking on the subject of telephones; I don’t remember.

“ He further states here : —

“ There was no telephone on his premises at that time, sofar as I
could see, and he made no mention of having any such instrument,
ewcept the detachedpieces above mentioned. He said that the idea of
transmitting sounds in this manner was not new, and that he had
some years bejbre read of it in a scientific publication translated
from the French.’

" I had read ofan apparatus that was termed — I didn’t know at the
time—the ‘I’honautograph ’ that I read of in some publication that
was translated from the French ; but I don’t remember of making the
statt meut; ifI did I have forgotten it. What I mean by translated
from the French is that it was a French invention,——invented by
some French party.

"X @1524. Have you mentioned all the statements referred to
in the last question which you think are incorrect?

“A. I don’t see “hy I should have made those statements to him
when I knowcd at the same time that I had telephone apparatus that

DRAWBAUGH CANNOT CONTRADICT MATTHEWS. 217

numbers of others had seen. I don’t see whyI \vhould have made
that statement; that is what makes me think I didn’t make that
statement.”

If the Court will strike out from the afﬁdavit and from the article
every word which Drawbaugh says is incorrect, the remaining sen-
tenccs are enough to end this case.

Upon redirect examination (defts, ii, 1090) the defendants’ coun-
sel again drew Drawbaugh’s attention to Mr. Matthews’s visit. His
memory does not seem to be very sharp about it, but the chief things
that were ascertained from him were : —-

" Q. 1579. Did he tell you that he was a newspaper man?

"A. I think he did.

“ Q. 1580. Did he make any notes or memoranda while he was
there ?

“ A. Yes, I remember that ; he did.”

.That he does not know What the notes were, but they were written
while Mr. Matthews was examining the clock; that, so far as he re-
members, most of their conversation was on the clock, and he does
not remember whether he showed telephones or spoke about them or
not; that he never experimented on a machine for transmitting let-
ters by variations of pitch. He has read about the phonautograph,
and he made a sketch of it on the witness—stand (det’ts, ii, 1104) ; he
does not know when he saw that nor in what paper. This redirect
examination is a good illustration of the character of Drawbaugh’s
answers. His own counsel asked him twenty questions as to What
he showed or said to Mr. Matthews. Substantially every one of
them contained the phrases, “I don’t remember,” “ I don’t know,”
“I may have been,” "I would not be positive,” and about the only
things that he does distinctly remember about it are, that Mr. Mat—
thews told him he was a newspaper man, and made some notes.

Special Importance of the Newspaper Articles. — These newspaper
articles become evidence of an absolutely conclusive character when
read in the light of the surrounding circumstances.

The telephone, and Mr. Bell’s fame as the inventor of it, ﬁlled all
the newspapers. The Baltimore American had done its share, and
some of its articles are found in complts, iv, exhibits, 418. Like all
the world, it attributed the invention to Mr. Bell. It even state
(p. 420) that at a public lecture, Mr. Elisha Gray (afterwards

218 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

up and defeated as a “ prior inventor”) “ gave the credit to Prof.
Bell, of Boston, for his remarkable development of the speaking tel-
egraph, which the lecturer described.”

If Mr. Matthews, an editor of that paper, travelling two hundred
miles for an article, had found that Drawbangh, whom he talked with
on the subject of the origin of the invention, pretended to be the true
inventor, can any one doubt that he, once a lawyer, and then an
editor, would have dressed up all he heard into an article, which, if
it had disclosed D and E, and L and M, and G and O, and H, as
existing before Bell was heard of, would have occupied a whole broad-
side and called for the largest type any sensation Would merit?

The Mechanicsburg publications are perhaps more conclusive from
the relations of the parties. The newspaper ofﬁce at Mechanicsburg,
which published several little newspapers, had printed its share of
telephone literature (complts, iv, exhibits, 437—9), and with it Mr.
Bell was the inventor. About April 1, 1878, its reporter visited
Drawbaugh’s shop; saw Drawbaugh’s instruments, but Drawbaugh
does not remember which, and listened at one, and they talked about

_ them. The result was two articles of that month (it). 398), saying
that Drawbaugh was then inventing a new kind of telephone, —

“ is inventing a telephone on a different plan from that now occupying
the attention of the scientists, which will produce the sounds louder
and plainer than the mother invention.”

" The new telephone”; " he is now constructing.”

The paper oﬂ’ered its columns to Drawbaugh on the subject
of telephones, but said, “ among some of his best productions
are nail machinery, faucets and electric clocks.” \Vhat next?
Drawbaugh went to see the editor, and took two telephones
(complts, i, 530). What next? The paperpresently referred to
the microphone and t0 the use of carbon in it, giving the credit
to some Englishman. It did not forget Drawbangh, however, but
it mentioned him thereafter only as gthe constructor of an electric
clock.

Here on the one side was (so the defendants now pretend) the
man who had made the “ mother invention,” and reduced it to prac—
tice ten years before Bell; who had made the carbon microphone
before Bell was heard of, and two years before the Englishman; who

MECHANICSBURG NEWSPAPER ARTICLES. 219

had shown to the newspaper reporter, and talked with him through

microphones two years old, if their story be true. On the other side
was a reporter who visited Drawbaugh at his shop, and an editor
Visited by Drawbangh at his ofﬁce in response to an offer of the use
of his columns; the one yearning for publicity, and the other search-
ing fora sensation; a local editor writing about telephones and in
contact with the undoubted real inventor (so they say) among his own
people and acquaintances,—— and nothing came of it. That gun was
not loaded.

And so on with all these writers; that which asserted the most for
Drawbaugh is the statement in one paper that he experimented, but
that his failure was so complete that he disclaimed even the hope of
success, and in another paper that he was then “ inventing” what the
defendants’ story says he had completed two years before.

This does not rest on any mztn’s memory; these things were
printed at the time, and Drawbaugh and all his friends, neighbors
and acquaintances read them, and no man gainsaid them till the de—
endants went through the country taking ex parte afﬁdavits.

There are two or three other matters in these articles that should
be mentioned. The Mechanicsburg newspaper of June 29, 1878
(complts, iv, exhibits, 408), says that an Englishman has found it an
improvement to make the telephone diaphragm of ” several laminae,
perforating all but that nearest the magnet.” Drawbcmgh adopted
exactly this construction. And he used it, he says, in I, which he
wishes the Court to believe was made about 1870 (defts, ii, 819) :—

” Q. 219. The drawing 'Exhibit Reproduced 1 Drawing No. 1’
shows a diaphragm with four holes in it : was that the way you made
and used your diaphragm in that instrument?

”Ans. I think that was the way I made it in the former stage of
the machines I had— that is, in a number of instruments.

" Q. 220. How did it work?

" Ans. I don’t think there was any gain by hwing it in that way;
I don’t remember of noticing any ditl‘erence.”

In answer 320 (defts, ii, 839) he says that he used the compound
diaphragm of two thicknesses in instrument L, admitted to have
been made after the Bell patent. How does it happen that the de—
vice which he fonnd worthless in 1870 (if he is to be believed) is
found to-day in a produced instrument which he alleges he made six

220 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

years later? And how did it happen that he and the Englishman
both tried the same far—fetched and useless contrivance? \Ve believe
that he got it from the paper of 1878. Reading that account in the
presence of L, one can hardly doubt that the fact is so.

Drawbaugh told Lloyd and VVorley that the sound he produced had
a kind of back lash and needed to be controlled by a box. He testi—
ﬁed (defts, ii, 1094, ans. 1608) that he read an account connected
with a lecture in New York,that a certain instrument which would not
give spoken words might be made to do so “ by properly arranging
the walls of the instrument and destroying the reﬂection.”

There is other evidence touching this same spring of 1878.

Theodore Grissz'nger, of Mechanicsburg (complts, i, 511), was a.
dealer in agricultural implements at Mechanicsburg, and has taken
out some patents on his own inventions. He had long known the
claimant, and in 186911ad paid him $40 for getting up a machine
for rounding leshes for leather ﬂy nets. In the early part of 1878,
he, his brother Jacob (who gave an excellent afﬁdavit for the com-
plainants, but died before they began to take their Pennsylvania
proofs), and his brother-in—law, Jacob Shettel (a connection of Draw-
baugh’s), formed the Drawbaugh Clock Company, and put in $500,
which they paid to Drawbaugh, and also considerable more money,
with which they bought, among other things, two small lathes, a sur-
face grinder, an ordinary grindstone, some polishing wheels, etc.,
and a small engine lathe for winding electrical coils (Drawbaugh,
defts, ii, 998, x-ans. 1120; p. 1074, X-ans. 1507), besides paying
for materials, labor, etc., for their business. The claimant never
asked him for aid about telephones, but one day, about April, 1878,
the subject was mentioned, and Drawbaugh said he had done some—
thing that way. The witness inquired what, thinking that if he had,
he would go in with him, but upon inquiry he became satisﬁed from
Drawbaugh’s statements that he had done nothing far enough back
to give him any claim to priority of invention (see Grissinger,
app. p. 409).

T/zcoplrilus I'Veaver.—About the same time and at Drawbaugh’s
suggestion Thcophilus \Veaver, patent solicitor of Harrisburg, was

employed to take out patents on the magnetic clock. He was an
old friend of Drawbaugh’s, having known him since 1867, and the

GRISSINGER,— T. WEAVER. 221

fact that Drawhaugh had never in all those years spoken to him of
any talking machine is enough to end this case. About May, 1878,
Drawbangh and Weaver spoke of telephones (Weaver, complts, i,
309; app. p. 390, infra), and Drawbaugh stated to Weaver
(complts, i, 398)—

“ That he, too, had experimented on the electric telephone years
ago, and before Bell came out with his invention, and that he had
some results, but that they were not of such a satisfactory nature as
to go ahead at the time with his experiments; that he had given up
his experiments for the time being, and now it was too late for him
to hope to have any standing as the inventor of the electric tele-
phone.”

And upon further inquiry he became satisﬁed that Drawbaugh,
even if his own story were true, had not done enough to have any
standing as an inventor of the telephone, and so he dropped the
subject. But if Drawhaugh’s statements had disclosed a case,
Weaver says that he would have at least ﬁled an application for him,
— any solicitor would have done so. (See VVeaver’s direct ex. pp‘.
203—400, and cross—ex. pp. 458—478. See appendix, p. 390, for full
quotations from this valuable deposition.)

Stees’ Telegraph Line. — In January, 1878, the speaking telephone
was brought into commercial use in Hairishurg, and the newspapers
contained repeated mention ofit (complts, iv, exhibits, p. 410). One
of the first private lines furnished was that for Draw baugh’s friend, Mr.
Stees, at the Car Company’s sawmill. This is mentioned in the news-
papers of March 18, 1878 (1'12. p. 412). Drawhaugh says that he saW
the Phelps telephone at Stees’s ofﬁce soon after (defts, ii, 1049, ans.
1890—4). About the same time he went to the telephone ofﬁce
in the Western Union oﬂiee, looked at the Phelps snuff-box instru-
ment, so called, showed his A to the telephone manager, asked if
the Phelps was patented, and when told that it was, said that his
own was most too much like it. He afterwards borrowed a " Phelps
Crown” telephone, took it to his shop and kept it two weeks. Dur-
ing all this time he never pretended or hinted that he was the ﬁrst
inventor. His friend Stees once took him to the telephone ofﬁce and
said to the telephone people in substance that Drawbaugh was then
inventing an improvement, but never hinted that he claimed to be the
originator. Yet Stees had known him intimately for years, and

222 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

be had just tried an instrument on Stees’s private line; this was in
1878. These facts appear partly from Drawbaugh’s cross-examina-
tion (defts, ii, pp. 1047—51) and from the depositions of Ziegler and
VVert, now or formerly of the telephone ofﬁce (eomplts, ii, 1025,
1176).

If Drawbaugh believed the story now told for him he would have
given vent in the strongest expressions to the feeling that he as ﬁrst
inventor was entitled to all the glory and all the proﬁt; and his
friend Stees would have known it and made it known. Drawbaugh
does not venture to go on the stand to deny this. Being asked
about it on his cross—examination, before Wert and Ziegler had
testiﬁed, he establishes the fact that in 1878, after the telephone
had been in public use, he went to Stees, whom he had known for a
dozen years, and dealt with about other inventions, and, on a private
line which Stees had had for eight years, tried a pair of telephones
which he alleges he had had for three years. If he had taken them
to Stees in 1875, history would have been changed; and if he had
had them he would have taken them.

Stees was, of all men, just the one Drawbaugh would have gone
to if he had had a telephone. Stees had had a private line since
about 1870. He had always had trouble, because neither he nor his
clerk were even tolerable Morse operators. He was the ﬁrst mall
in Harrisburg to put in a telephone. Drawbaugh and he were old
friends. They had been partners in a stamp canceller Drawbaugh
invented. It was to Stees’s line that Drawbaugh went ﬁrst to use a
telephone ; it was Stees who took him to the telegraph and telephone
ofﬁce; it was on Stees’s line that he made a first trial of his tele-
phone outside of his own shop. This was in 1878. ‘Why not
before 1876?

After all this comes the next step in 1878.

Drawbaug/z’s Autobiography—In the summer of 1878 James
D. Scott undertook to publish a history of Cumberland County,
and as an inducement to Drawbaugh to subscribe (which Drawbaugh
did Aug. 21, 1878, complts, i, 716), he agreed to publish a short
biography (17). 716). Mr. Scott’s writer furnished an account of
Milltown, half of which was devoted to a description of Drawbaugh’s
shop and the work carried on there ; but it did not mention telephones.

HISTORY AND AUTOBIOGRAPHY. 223

It was written in Drawbaugh’s shop from information obtained from
him personally (Nesbit, complts, i, 690), and the part about him is
as follows (17). 689) : —-

" What was once a clover will has been remodelled and ﬁtted up
as a machine shop. The present proprietor, Daniel Drawbaugh,
some years since formed a stoek company for the manufacture of
measuring faucets and rotary pumps, and for a while the machinery
was used for the purposes of this company, but ﬁnally the faucet
machinery was removed to Mechanicsburg, and the works were much
reduced. They are now applied, under the care of Mr. Drawbaugh,
to the manufacture of his patent electric clock, which is a marvel of
ingenuity and promises to supersede all other clocks. They are said
to be run by a turbine wheel of ﬁfteen horse-power, and to be worth
not less than $7,000.”

Dir. Scott, who obtained the subscription, testiﬁes (complts, i,
718, ans. 25—6) that Drawbaugh never intimated to him that he
claimed to he the ﬁrst inventor of the telephone, and that if he had
he Would have mentioned it in the book. Of course he would have.
Mr. Nesbit, one of the two writers who visited Drawbaugh’s shop,
testiﬁed to the same eﬁ‘ect (complts, i, 691, ans. 32—4). Mr. Hull,
the other Writer, died in 1879 (2'1). p. 691, ans. 35).

In the appendix is a biography of Drawbaugh, furnished by
Drawbaugh himself, and published in February, 1879, as follows
(2'6. 707) : —

" DANIEL DRAWBAUGH,

" An inventive genius of whom our country may feel justly proud,
resides at his birthplace, Milltown, three miles southwest of Harris-
burg. His attention has, as a general thing, been devoted to the im-
provement of manufactures. His ﬁrst invention was an automatic
sewing [intended for sawing] machine, followed by various others,
including a barrel—stave joiner, which was patented in 1857, and
pretty generally introduced. Several patents were also taken out in
1855. Many of his inventions, up to this time, had been devoted
to barrel making. Mr. Drawbaugh understands photography thor—
oughly, preparing instruments and chemicals, and improving the
process. Telegraphy and electric machines followed. He is the
inventor of the justly celebrated ‘ electric clock’ and of several kinds
of telephones, one of which is operated by a battery and the other
by induction. It will thus be seen that Mr. Drawbaugh has pene-
trated large ﬁelds in search of information, and with very remark-
able success.” -

A man who begins by saying that the country should be proud of

224 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

his inventive genius, and forgets to say that he is the first inventor
of the telephone. But he has made several kinds. This is not the
way in which the first inventor of any speaking telephone would
describe his work.

He is now made to posture before the Court as the ﬁrst inventor
of the telephone, who, unnoticed and unknown, tried in vain, by
every means available, to make his claims known to the public, and
who could not raise $15 to pay for ﬁling a caveat. He subscribed
and paid $10 to get this biography published. It is his work.
Scott and Nesbit both testify positively that, whoever wrote it,
Scott neither employed nor paid any one for that purpose. Scott
paid for the ﬁrst article only (Nesbit, i6, 689, ans. 2, 3; p. 702,
ans. 127; Scott, 2'6. 717, ans. 17—20). Scott agreed with Draw—
baugh that Drawbaugh should write the biography, and afterwards
received it by mail (Scott, 2'1). 716, ans. 15, 16) ; it was in Draw-
baugh’s handwriting (Mrs. McDowell, ib. 709, ans. 14, 15). Scott
placed it for revision in the hands of his daughter, Mrs. McDowell,
and she condensed it, omitting nothing of importance (Mrs. Mc-
Dowell, 17). 707, ans. 17—21; Scott 1). 718, ans. 22, 23). The man-
uscript no longer exists (:7). 708, ans. 8—12; 1). 719, ans. 27—29).

There is no testimony whatever to contradict this.

During the cross-examination of Mr. Nesbit, the defendants pro-
duced, which means brought from Drawbaugh’s own possession,
the rough draft of the biography. It is thus clear that this biography
was furnished by Drawbaugh himself. He has not gone upon the
stand to attempt to explain it, nor to ewpose himself to cross-ewamina-
tion about it. (See this fully stated, app. pp. 373—380.)

Events of 1879. Written Proof ante litem motam aboutthe 012m-
acter of Drowbauglz’s Instruments and the Results of his work. — In
the summer of 1879, testimony was taken in an interference about
an improvement in faucets then depending between David A. Hauek
and Daniel Drawbaugh. The depositions of David A. Hauck and
his patty were ﬁrst taken, then the depositions of Drawbaugh and
his party. Drawbaugh’s counsel, Mr. Jacobs, who is his counsel in

this suit, and also one of the four who brought him forward, seemed

to think he should gain something by trying to get Hauck to admit
that Drawbaugh, to his knowledge, was a great inVentor. The

BRIEF FOR COMPLAINANTS ON FINAL HEARING. 224a

Mr. Scott, the publisher of the book, swears positively that he did
not undertake to write Drawbaugh’s biography; either Drawbaugh
undertook to do it or have it done himself. That he afterwards
received it by mail, believed it came from Drawbaugh, and his daugh-
ter, who revised it for publication, and who says that she has been
iu'the habit of examining and observinghandwriting, swears that,
her judgment, it was in Drawhangh’s handwriting. Thereupon Draw-
baugh produces, apparently from his own possession, what is offered
as and is evidently the original draft; and he does not venture himself
or by any witness to contradict Scott or Mrs. McDowell. The biogra-
phy as produced and the biography as printed do not materially differ,
exceptiu length, and thus stand admitted to come from Drawbaugli
with his sanction. The draft produced by him is a little better for our
purposes than the published one, because it is more full, and the
telephone would have been less likely, if possible, to have been

omitted. It will be seen that every invention enumerated —— about

twenty—six in number— was an improvement on existing contriv—
ances. Besides the language used in the particular sentence—-
speaking of telephones—“ produced " and not “invented,” and the
language ” several kinds of telephones,” it will be seen that there is
no indication that his work in the telephone ﬁeld vas distinct in kind
from his Work in other ﬁelds. In the 0the1s he was simply an im-
prover, and there is no intimation that he occupied any different po-
sition with reg er to the telephone. The article is as follows
(complts, 1, 705) :—
The “Exhibit Hull Manuscript” is as follows : —

“Daniel Drawbaugh. One of the gre eates inventive geniouses of
[his [the] age (so proliﬁc of great men) is the subject of this sketch,
Danl Diawbaugh, who was born in the yeai , in the quiet
secluded vill: age ot Milltown three miles S. W . of Harrisburg where
he has spent the greater portion of an active life conceiving & pro-
ducing as a result of the conceptions of an unusually fertile brtalin, ‘
score of useful ingenious machines & devices. It appears [that
the] by an [in] examination [ing] the list of his inventions that the
leading manufactuiing intlests of the place (Milltown) in [his youth—
ful] his boyhood days, gave direction to his thought & incentive to
action. We propose to give herewith a sketch of his inventions but
are sorry that we cannot accompany it with [a] such discription of
each as their importance merits His ﬁrst invention was an auto-
matic sawing machine, then a No. of machines used in wagon making

2242) DRAWBAUGH’S AUTOBIOGRAPHY.

next a machine for boring spoke tenets then a machine for sawing
tenets a barrel-stave jointing machine patented 1851 this machine
was pretty generally introduced & its merits appreciated, an auto-
matic grinding machine was next invented to meet a demand created
by the introduction of the jointer, then followed several machines
for making staves heading & shingles, all of which were patented
1855 after which machine for rounding heading crozing dress-
ing and ﬁnishing outside of barrel were [next] invented these
Were again followed by a device for running mill stones one for
dressing mill stones a device for elevating [mill stones] grain
in mills. He then invented & had patented 4 improvements in nail-
platefeeding next- a tack machine & a new design in tacks Photog-
raphy next engaged his attention, he ﬁtted himself for action in this
ﬁeld, by manufacturing his own camera ground & ﬁtted acarmatic
lenses for camera prepared the necesorry chemicals & improved the
process for enlarging pictures. Next electricity & and electric ma—
chinery attracted his attention and an electric machine was produced
throwing out of consideration the galvanic Battery and [voltaic]
eleclric pile, then a machine for alphebetical telegraphiug then the
justly celebrated electric clock & the machinery necessary for its
construction & several kinds of telephones one of which [was] is
opperated by Battery and another by induction It will be seen
from the foregoing that Mr. Drawbaugh has has penetrated vast
ﬁelds in search of information & with what success we leave to the
reader to determine. We are proud to own Mr. D. as a citizen of
our Township & deem him worthy of a position [of] at the head of
the list of our prominent men & are hapy to accord him that
position.”

[The examiner has indicated the erasures in both documents by

square brackets, for the reason that round brackets occur in the

papers themselves}

1879. —DRAWBAUGH's ADMISSIONS UNDER OATH. 225

Hancks had bought Drawbaugh’s faucet patents in July, 1873, and
for two years or more manufactured faucets at Drawbaugh’s shop,
and David A. Hauck personally worked on them. What Drawbaugh
then had Hauck knew. So they elicited from him and from his
brother, Samuel Hanck (complts, iv, exhibits, pp. 242, 251), that
Drawbaugh was very free in communicating his ideas to his friends
about his inventions, and particularly so with David and Samuel
Hauck, and talked with them often about the subject of his inven-
tions. Indeed. he was in such close relations with David Hauck on
this subject, that he got David to take him to Mechanicsburg and get
the telegraph operator there to try a magneto key he had made (v.
p. 316, infi’u). Then they cross-examined David Hanek, asking him
whether he was not aware that Drawba ugh had made a great many
useful and ingenious inventions, to which he answered that he consid-
ered they were mostly imitations, though some might be patentable.
He enumerated some, and then they inquired of him through two or
three pages whether certain things which Drawbnugh claimed to have
invented were not original inventions, as distinguished from anything
in the nature of an imitation; but all through this examination not a
word was said about telephone. It wound up (p. 257) : ——

“ X Q. 52. And you undertake to swear that Daniel Drawbaugh
is an imitator. and not an original inventor.

“A. I believe him to be an excellent imitator, while I do not say
that he could not be called an inventor.”

Yet these men want the Court to believe that Drawbaugh had the
greatest invention of modern times in a practical form long before
it was heard of elsewhere, and so that Hauek must have known all
about it. That they did not intimate anything of the kind is a con—
clusive piece of proof on the subject. But this is not all. A month
later Henry Drawbaugh was cross—examined by Hauck’s counsel,
and Hauck’s counsel intimated by the tenor of his crossrcxamination
that Drmvhaugh was a man who, whatever ideas he might have, had
never got anything to work successfully, and he put this question to
Henry (complts, iv, exhibits, p. 118) :—

“X Q. 26. Please enumerate the machines that you have seen
him make of his own invention that worked satisfactorily.
"A. Stave jointer, twu stave cutters, two heading cutters, and a

226 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

shingle cutter, a harvester, a heading rounder, a nail feeder, a felloe
saw, an electrical clock, a rotary pump, two faucets, a water engine,
and a great many more, and not one of them but what would work;
and the man had not the money to go into them and push them.
That was what was the matter.”

Henry Drawbaugh pretends that for many years before 1876 he
was at his brother’s shop once or twice a week. He now wishes the
Court to believe that he then knew that Daniel had a practical talking
machine, and that he then believed it to be the greatest invention of
the age.

After that, Daniel Drawbaugh was asked by his own counsel, in
order to enable him to testify as an expert, What inventions he had
made, and he answered (p. 23) that he had made, he might say, ﬁfty
inventions, and had patented over a dozen. Then he was cross—
examined about one or two inventions that he had mentioned, with a
view to show that they did not work satisfactorily. And then came
the important question (complts, iv, exhibits, p. 142) :—«

"X Q. 104. Since 1866, what machines have you conceived and
perfected that have worked satisfactorily ?

“A. To the best of my knowledge, I think that they all have.
The nail machine gives satisfaction. I had it running in the works,
but the nailers drove me out. The tram and red staff was a good
machine, and adopted by a number of millers, and acknowledged by
them to be a good machine. The magnetic clock I consider a good
thing, but I am not through with experiments on it. I believe this

last faucet is a good thing.”

It is impossible to ﬁnd stronger proof that during the time Hauck
was at the shop in 1873—41—5, and before telephones were heard of
elsewhere, he never saw any nor heard of any, and Drawbaugh knew
he never had. It is impossible to ﬁnd stronger proof that there were
no telephones there at that time, and that if Drawbaugh had attempted
anything in that line it had never got beyond abortive experiments.

The telephone was not a matter which had slipped his memory or
was unknown to his counsel. He testiﬁes that in the spring, a few
months before that deposition, he had shown a telephone to Mr.
Jacobs, then and now his counsel (Drawbaugh, defts, ii, 854, ans.
365), and in that same deposition he had said (complts, iv, exhibits,

p. 100) : ——

1879. —DRAWBAUGH’S SWORN ADMISSIONS. 227

"Q. 69. Will you produce any other sketches (of faucets)?

“A. Here 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."

" experimenting on telephones” as an epoch to

Observe he uses
date other things from, and names 1876 as the year of them. Will
the Court believe now that he had experimented diligently during
nine years before that, and had had practical instruments for at least
six or seven years before that?

But this epoch agrees charmingly with the deposition of his brother,
Henry F. Drawbaugh, who says (defts, i, 419) :—

“Q. 46. Did you hear your brother Daniel’s wife talk about his
spending his time experimenting, if so, how often and during what

I have heard her make mention of it very often, during the
year 1876 and from that time on, not from that back.”

VVhereupon the defendants never called Mrs. Drawbaagh.

Against this are " to the best of my memory ” recollections. No
defence ever prevailed with any proof against such evidence of such
facts.

His Partners and Shopmales do not [mow of a Telephone ; this is
Proof that none existed.—— We introduced positive testimony of a
large number of persons who would certainly have known ofa speak-
ing telephone and have used it if he had had one fer a considerable
length of time before they were known elsewhere in the world.

This testimony is by no means what is sometimes called negative
proof; it is a great deal more than that. In its recent decision
(Brady’s case) the Supreme Court in terms recognized the fact that
the claimant’s associates did not know of the alleged invention as
among the strongest pOSSible proofs. Defendants’ witnesses testiﬁed
that it was in 1871—2-3—4 that telephones existed at his shop. They
had undoubtedly existed there for a number of years before these
persons took the stand to testiy. It becomes a question when
they ﬁrst existed there; and, starting with the assertion made
on behalf of Drawbaugh throughout this case, that there never was
any concealment, and that whenever he did have them they were

228 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

universally known, the man who swears that they ﬁrst existed there
in 1874 gives no more positive testimony than the man who being
Constantly or frequently there at the same time swears that they
were [not there or than the man who swears they first existed there
in 187 7.

Clanship, local gossip and local interest urge the one man and hold
back the other. The courts know that the falsehoods in this class of
patent cases do not come from forgetfulness of an invention actually
made and practised,—no reported case has found trouble in that
respect, —— but from stimulated imaginations, exaggeration of results,
misplacement of dates. One knows in advance which way the (lan-
ger is in this case; for many men in the community found themselves
committed by ex parle afﬁdavits taken in advance,——- we cannot now
tell hemp—and the suit has been matter of local gossip and local
feeling ever since. If the truth of the case had not been with us, we
could not have obtained so many witnesses from the best men in the
community. Moreover, false or mistaken testimony from a defendant’s
witness to a private visit cannot be directly controlled or contradicted
by us; but whenever one of our witnesses visited the shop the de-
fendants had a man present, -— the claimant. He might sometimes
forget; but, for the most part, if he had spoken of or shown a tele-
phone to any of them, his knowledge would supply the means not
only to contradict but to confound and extort confession on cress-
examination. Now, although we called more than forty such wit-
nesses, most of whom had been visited by the defendants before we
ﬁrst saw them, there was not on the cross—examination of any of them

so much as a single question which implied that Drawbangh remem-

bered anything to contradict our witnesses. His memory conﬁrms
the facts they state; and he does not and therefore presumably can-
not furnish any fact to show why, if he had telephones, they should
not have known of them.

Inveslz'yalz'ons by some of the Defendants in 1878—9.—Dr. John
\V. Mofﬁ t, of Harrisburg (defts, i, 516; cymplts, iv, 203; app.
143), is a dentist, and a man of intelligence. He has himself been
aninventor and a patentce of various contrivances, though of small
importance. He has known Drawbaugh for twenty-ﬁve years. He
professed to have taken great interest in his inventions, and for that,

IIIS INTIMATES DISPROVE THE STORY. 229

reason frequented his shop for a period which began before 1870
(complts, iv, 204). He said that Drawbaugh had repeatedly solicited
him to go into some of the inventions, and in 1878 he became
Drawbaugh’s partner in a faucet invention.

Called as a witness here for the defence, he was asked, on direct
examination, whether he had frequently visited Drawbaugh’s shop
during the seven or eight years before he testiﬁed (1881) ; he said
that he had. Did he know of Drawbaugh’s talking machine, and if
so, when, and how, first? He ﬁrst knew of it by seeing it and a few
weeks after listening at A; be heard such perfect speech that he
turned around in surprise, thinking Drawbaugh was behind him.
He says this was in the summer of 1873, but, as the defendants
allege 1874 for the making of A, and as their record absolutely dis—
proves 1873 for it, they must begin by admitting that this man,
brought to swear to a date, is wrong.

The deposition, as it then read, showed that this man of intelli-
gence had frequented the shop since 1873 or 1874, and had at once
and ever since seen talking machines there. Other matters discred-
itetl him, but that was what the ﬁrst part of his deposition was
offered for. \Ve now ﬁnd, from a deposition he gave in the faucet
case, that from a period before 1870 he was a frequenter of Draw-
baugh’s shop ,(complts, iv, exhibits, 204), and, as early as 1867, was
praising Drawbaugh’s merits as an inventor in a most lautlatoiy and
credulous spirit to Theophilus Weaver, his patent solicitor, and the
friend of both, vaunting him as the inVentor of the Gitfard injector
(Weaver, complts, i, 382, not contradicted).

The Court will not fail to appreciate this. The story is that Draw—
baugh hadra talking machine which talked in 1867, and that all the
neighbors knew it; yet this frequenter of his shop, interested in
Drawbtugh’s inventions, did not ﬁnd it out for seven years. There
were twenty-five other men, who were partners or workmen in that
shop between 1867 and 1874, in the same state of ignorance.

The defendants knew this about Dr. Mofﬁtt, antl plainly felt the
weight of it ; they suppressed it by so framitig the questions as to
create the impression that his visits began about the time he says. he
ﬁrst knew of the talking machine.

That there may be no mistake, we quote (dcfts, i, 516) :—

230 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

“Q. 2. Do you know Daniel Drawhangh, of Eberly’s Mills, Cum-
berland County, Pa. ; if so, how long have you known him?

"A. I have known him twenty ﬁve years at least.

"Q. 3. During the past seven or eight years, have you heen in
the habit of frequently visiting his shop at Eherly’s Mills or not?

"A. I have.

"Q. 4. IVhat caused you to go out there frequently ?

"A. Trout ﬁshing, and the interest I took in the various and
numerous inventions that Daniel Drawbaugh was making and exper-
imenting on. ‘

"Q. 5. Did you ever see any talking machines there; and, if so,
when did you ﬁrst see them, to the best of your recollection?

"A. I have, and, as near as I can recollect, in 1873 ﬁrst, and
from then till now.”

In the faucet interference case, Dr. Moflitt, in the summer of 1879,
testiﬁed as follows (complts, iv. 204) :—

" Q. 5. How often, during the period which you have named
(1870—1878), did Daniel Drawhaugh solicit you to invest capital in
the patenting and manufacture of his invention?

A. Nearly every time we met, which was frequent, as I visited
him at his shop as a matter of pleasure and interest to me.

" Q. 6. Did he or did he not solicit you to procure the invest—
ment by others of capital in the patenting and manufacture of his in-
vention?

"A. He did, after I had told him that I could not invest the
amount of money required to purchase machinery, material, etc., to
construct the faucet myself.”

“X Q. 1. How do you ﬁx upon the year 1870 as your starting
point?

*‘ A. The same way that I would ﬁx any other thing that I could
recollect.”

"X Q 2. Are there any circumstances that enable you to ﬁx
that year with any degree of certainty; and if so, tell us what they
are?

”A. I did not ﬁx the year 1870 positively or certainly as the
year I ﬁrst saw this faucet, but stated that it was in the year 1870 or
1871, and know that I visited Daniel Drawhaugh at his shop at
Eberly’s Mills at that time.

“ X Q. 3. Did you not visit Daniel Drawhaugh’s shop frequently
during all the different years between that time and now ?

" A. I did, and brfore that time.”

In the fall of 1878 he determined to embark in some patent enter-

prise with Drawbaugh, and the one which he selected was an im—
provement in molasses faucets. Wanting another partner, he went

CHELLIS AND MOFFITT DISPROVE THE CLAIM. 231

to E. W. Chellis, who keeps a ninety-nine—cent store in Harrisburg,
and who is one of the directors and incorporators of the defendant
corporation, and one of the defendants in this case. They went into
the faucet business about December, 1878.

Chellis testiﬁed (defts, i, 548; app. 161) :—

" Dr. Mofﬁtt told me before I bought in with the faucet that Dan
had a phonograph and a telephone that he had invented.”

This was in the fall of 1878; "a” telephone; what telephone and
when?
Dr. Moﬂitt testiﬁes (defts, i, 519) :—

" Q. 24. Why did you ﬁnally decide to go into the faucet rather
than the talking machine?

“A. Because I understood the faucet business better than the
talking machine, and having asked Mr. Chellis what he thought of the
talking machine, as a speculative enterprise he discouraged it and en~
couraged the faucet business, because, as he stated, there was more
prospect of making money out of it— the faucet — in a short time,
than out of the talking machine.”

"X Q 28. How long before you went into the faucet business
did you have the conversation with Mr. Chellis about the relative
merits of the talking machine and faucet?

"A. As near as I can remember, a month or two.

" X Q. 29. Your conversation must have been somewhere in the
fall of 1878, I suppose?

“A. I think so.

"XQ. 30. Did he tell you why he thought there was more
prospect, etc , as you have stated?

"A. Yes, sir; I remember that one of the leading points he
stated was 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 the telephone business; his
meaning was that Drawbaug/z would have to establish priority of in-
vention, etc.”

Chellis says that Drawbaugh urged him to go in with him on the
telephone, but that he did not (defts, i, 548; app. 161).

"A. 12. Because I was interested in the faucet and motor busi-
ness, and wished to push them, and [did not think we could do
much with the telephone as Bell had a patent, and I didn’t know
that he could antedate them.

“ Q. 13. During any of your early conversations with Mr. Draw-
baugh on the subject, did you say anything to him about Bell’s patent
and claim of priority over all others ?

232 BRIEF FOR eOMPLAINANTs 0N FINAL BEARING.

“ A. Yes, sir; and I advised him to drop it —— the telephone—a3
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 ex-
pressing himself; when I would say, you cannot antedate Bell, he
would say, "I don’t know about that; I have been working at it a
good while.”

When this is looked at withvthe surroundings, its full meaning is

crushing.

The telephone had been in active public use in Harrisburg and
elsewhere, and its money value was well known. Drawbaugh, like
hundreds of others, was trying to invent improvements. The news-
papers of the spring of 1878 had so stated. Perhaps he was experi—
menting on the microphone, which is What then attracted most exper-
imenters, though we do not know this. Perhaps it was by the
addition of levers, as described in the sketch he made for Weaver, in
May, 1878 (put in evidence by Weaver, complts, i, 398, and not
contradicted), that he was trying to ”produce the sound louder and
plainer than the mother invention.” If he then had any kind
of a practical telephone, and could antedate Bell on " the mother in-
vention,” or if, unable to antedate Bell, he had a microphone of
superior excellence or old enough to antedatc the microphones which
had just come into use, he had something worth taking hold of. So
Chellis, this speculator, and Dr. Moﬁitt, who had frequented Draw-
baugh’s shop for ten years, and knew all his inventions, considered
the matter. The time was then fresh, and Dr. Motiitt then KNEW
the truth. They decided against him 011 both questions. They pre-
ferred a molasses spigot, because Bell had a patent, and they didn’t
know — Dr. Maﬁa didn’t know— Drawbaugh didn’t know -— that
Drawbaugh could antedate that.

That is not all. Chellis saw telephones at Drawhaugh’s shop in
1879; Drawbaugh was working at them night and day (lien (which
is fatal to the story that all the exhibits had been made before that),
and Chellis advised Drawbaugh to drop that work, as he " could not
antedate Bell.” Did he burst out in indignation with the assertion
that he had a dozen good instruments before Bell was heard of; had
not only “ worked at” the invention, but had completed it eight or
ten years before? That is what he Would have done if his present;
story had been true. What he did say was when Chellis, having

CHELLIS AND MOFFITT DISPRDVE THE CLAIM. 233

learned all that his friend Moﬂitt knew, said to him, "You had better
drop it : you can’t antedate Bell,” ” I don’t know ; I have been work-
ing at it a good while.” This is in substance what he had said the
year before to Mr. \Veaver and Mr. Grissinger and Mr. Matthews,
and what Mr. Matthews wrote and published about him, -that he
had worked but never got anything to talk or even to lead him to
expect that he would.

A month or two afterwards, in the Hauck interference, testifying
for the beneﬁt of himself and these two men, Chellis and Moﬁitt, as
his partners, he repeated the assertion in a more emphatic form. He
debated with Hauck what he had originated, but no one suggested the
telephone; he was asked by Hauck, not what he had tried to do, but
What he had done, and he named other things, but no telephone, and
to cap the climax, he named the telephone as a thing he was experi-
menting on in 1876 (See p. 226, supra).

And now Chellis, who bought his pretensions for nothing in May,

and sold them for a great price, in stock, in June, is trying to

give value to that stock by making the Court to believe that the tele-
phone had passed beyond the era of experiment. In 1878, Chellis
and Moﬂitt, who had known all of Drawbaugh’s work for ten years,
knew that he could not antedate Bell ; and now one of those men, on
the testimony of the other, wishes the Court to believe that Draw—
bangh has established priority of invention beyond the possibility of a
doubt.

This Chellis, to whom Drawbaugh in the spring of 1879 could
only say that he “ did not know” whether he could antedate, but
that he had been "Working at” the subject perhaps before Bell,
wishes the Court to believe that Drawbaugh’s testimony proves be—
yond a question that he had been not only working at but completed
a practical instrument ﬁt for commercial use six years before Bell
was heard of. When memories have grown staler by ﬁve years, the
Court is asked on them to find with certainty that which at that early
time one ofthe defendants himself knew was untrue.

This trial is ("It appeal to the Court by the defendants themselves
from their own decision, when t/zefacts of the case were known per-
sonally to the one wko made the investigation (and sold out to the
others) to be otizei'wise_tha1i they now pretend.

234 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

The Genesis of this Controversy. —-—After this condemnation of pre-
tensions, which indeed Drawbaugh never proffered, Chellis, together
with his two counsel in the faucet case, Mr. Hill and Mr. Jacobs,
did, May 6, 1880, acquire three quarters of all that Drawllaugh had
invented or pretended to have invented. They paid him nothing for it
and spent no money about it. There is no suggestion that they
agreed to spend any about it; but they instantly turned around and
sold it out to a band of infringers seeking for a defence. Mr. Hill,
one of the parties to this transaction, counsel for the defendants in
this case, has stated the way in which it began, and Mr. Chellis has
assented to it. Mr. Chellis’s deposition contains the following
(defts, i, 559; app. 164) :~—-

“ Q. 106. \Vheu Mr. Wolf ﬁrst came to you to negotiate for the
purchase of the Drawbaugh invention, did he or not tell you that he
represented a party who had already purchased the telephone inven-
tions of Klemm and Tisdel, and were purposiug to enter upon their
manufacture and sale, and that they expected trouble with the Bell
Telephone Company, Who claimed to monopolize electric telephones
of all kinds, and that they had already fully determined to test the
validity and scope of the Bell patents, and the question whether the
Klemm and Tisdel telephones were infringements thereof; what, if
any, statements did he make on those several points?

" Ans. He did state something to that effect ; it was in Mr. Jaeobs’s
room at the hotel. I can’t remember the exact words he said ; it was
to the effect that they wanted to use it in evidence against the Bell
Company; I mean they wished to use tile Drawbaug/L invention in
evidence against the Bell Company.

“Q. 107. Did he or not state that he had been advised that a
patent might yet be granted upon the Drawbaugh invention, and
that unless they purchased the invention, the Bell Company might
themselves purchase it, if they found their suit likely to be defeated
by it, and might then get a patent ‘on it themselves which they
could use against Mr. Wolf and his associates?

“ Ans. 7 Something to that effect, but I cannot remember the exact
words.”

Mr. Chellis says (13. 555) that he and his associates acquired their
interest in Drawbaugh’s pretensions May 6, 1880. On May 24,
1880, Wolf, one of the infringers, to whom they sold this show of
defence, was actually in Harrisburg. It is perfectly plain that these

persons found that Drawbaugh could be sold out to a party of in—
fringcrs, stepped in between him and them, and without the slight-

ORIGIN or THIS CLAIM AND CONTROVERSY. 235

est outlay or consideration, obtained from him for nothing three
quarters of the price.“ The deed shows, and Drawlmugh testiﬁes,
that the price paid was $20,000 in money, and an amount of stock so
large that both he and Chellis refused to tell how much it is. This
consideration of money and stock was shared equally among the
four.

The capital consisted in what Drawbaugh (0 Cd swear to and estab-
lish. When those who had investigated and knew—Chellis, Hill and
Jacobs —— bought it, they got three quarters for nothing; when they
sold it a few days afterwards to these men who made no investiga-
tion, beyond what a layman might make in a day spent at HarriS<
burg wit/2 O/zellis and Jacobs, they called it worth ﬁve million dollars.

Di‘awbtmgh’s History before 1877.,—To whom shall we go to
ﬁnd out whether he had speaking telephones, and what he did about
them? Have the defendants called the persons likely to have the
best knowledge? \‘Vas he so situated with reference to others that
if he had had speaking telephones he would have received assistance
to patent them and to manufacture them? What was his history,
what were his occupations, what were his resources; were the
facts of his history such that if he had had speaking telephones his
life would have been what it is, or quite different? It is remarkable
that in his deposition, and in the depositions of the Witnesses who
were called to support him, or rather to preface him, there is not

the slightest attempt to give a sketch of his life, and show that it

was the lite of the maker of such a great invention. On the con—
trary, every effort was made to keep the rest of his work out of
sight; it was only from cross—eXaminations by the complainantsthat
the Court will obtain the slightest idea of the real character of his
existence, his occupations, and the inventions which occupied his
mind. Different years of his history may be grouped around cer-
tain important facts.

'1719 Starling-point for Examination is 1864—5. ——If his story be
true, he had conceived of the invention and constructed an apparatus
which talked some words in the winter of 1864—5. From that
period all his attention and resources would be devoted to completing
it, patenting it and putting it in use. Examine his life, therefore,
from that time.

636 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Before the fall of 1866 he had been for many years an inventor,
and had taken out a good many patents. The list of all of his
patents from the beginning to the end is as follows (see complts, iv,
exhibits, pp. 341—355, proved to be a full list by Drawbaugh, x-aus.
1552, (lofts, ii, 1086, and by the Patent Oﬂﬁce certiﬁcate, complts,
iii, rejoinder, p. 1917) :—

No. 8,505, Nov. 11, 1851, for improvement in stave—jointing
machines.

No. 12,900, May 22, 1855, for stave machine.

No. 38,296, April 28, 1863, for improvement in millstones.

No. 38,472, May 12, 1863, for improved machine for levelling
the faces of millstones.

No. 51,435, Dec. 12, 1865,‘f0r improvement in nail-plate feeders.

No. 59,792, Nov. 20, 1866, for improvement in faucets.

No. 59,793, Nov. 20, 1866, for improvement in faucets.

No. 71,148, Nov. 19, 1867, for improvement in nail—plate feeding
device.

And later. ——

Improvement in magnetic clocks, applied for May, 1878; patent
not yet issued.

No. 211,322, Jan. 14, 1879, improvement in earth batteries for
magnetic clocks, applied for May, 1878.

No. 225,577, March 16, 1880, improvement in water motors, ap-
plied for July 2, 1879.

No. 229,592, July 6, 1880, improvement in rotary measuring
faucets, applied for Jan. 14, 1879.

Nail—plate Feeder. ——In 1865—1872 he invented and built a nail—
plate feeder. Some acquaintances, C. Ebcrly and B. Frank Lee,
with Gov. Geary, brother—in-law of Lee, agreed for a part interest
to furnish the money for experimenting and patenting, and to pay

for materials, and for all of Drawbaucrh’s time and labor on it. He
0

received for this several hundred dollars, largely in supplies from
Eberly, who was a millowner, etc. (defts, ii, 915).

The two patents for this work were dated Dec. 12, 1865, and
Nov. 19, 1867. The work lasted until at least 1872 or 1873 before
it was dropped. The machine never got into use.

His deposition (defts, ii, 867—1058) gives a list ofa large number

THINGS PATENTED AFTER THE ALLEGED INVENTION. 237

of contrivances he was employed to design and make between 1866
and 1876. Among those which brought him money are the fol—
lowing:—

' Measuring Faucet. ——In the winter of 1865—6 he got up a measuring
faucet for molasses. It was invented at the request of the local store-
keeper, Crull, who, for a half interest, agreed to pay all expenses,
including Drawbaugh’s time and labor (ib. ii, 911—12). Then
Drawbaugh sold to Gardner the other half interest in the right to
use the invention for the purpose of measuring viscid liquids.
Gardner also brought Crull’s interest under the contract and con—
tinued to pay expenses (27).). Gardner agreed to pay Drawbaugh
$1,000 for this half, and in April, 1867, gave him what was then a
good note for it. Afterwards Drawbaugh iutlorsed the note and got
it discounted, April, 1869; it has never been paid by any one
(defts, ii, 867). The patents were dated Nov. 20, 1866.

Rotary Pump. ~— The invention covered by the patents was a kind
of chambered rotary pump. Drawhaugh had sold to Crull & Gard-
ner the right to use it for measuring; he now sold to another concern
the right to use it for pumps. This concern was organized as an
association in 1867, known as the Drawbaugh Pump Company. It
soon bought. the faucet right, and in 1870 was reorganized as a cor-
poration under the name of the “ Drawbaugh Manufacturing Com-
pany.” It paid him $6,000 for this pump right under the patents
($5,000 in cash and $1,000 in stock), and raised not far from $20,-
000 more in cash, with which it ﬁtted up and stocked the machine
shop, of which they made him master mechanic, and which he has
since occupied, rent free (defts, i, 616, 679; ii, 913). Drawhaugh
owned from one sixth to one ninth of it. They manufactured other
things of his.

This appears from the depositions of John B. Drawhaugh, who
states the story succinctly (i, 616; app. p. 195; infra, p. 11), and
of W. L. Gorgas, the treasurer (i, 679; app. p. 223), and of D.
Drawhaugh (ii, 913; infra, p. 12).

In July, 1873, D. A. and S. F. Hauck raised $7,000 in cash, and
paid it to the " Drawbaugh Manufacturing Company ” for the Draw-
baugh faucet patents and machinery (det'ts, i, 682, 683).

Millbush Company.——A concern called the Millbush Company

238 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

was formed about 1868 upon the invention of a neighbor, and raised
and expended about $1,500 cash in machinery constructed at the
shop according to Drawbaugh’s designs and under his supervision
(complts, ii, 1039; defts, ii, 934, 935).

Axle Uompany.——~The Axle Company, formed early in 1875,
upon the invention of another neighbor, had their work done at
Drawbaugh’s shop by Drawbaugh personally, and he designed and
constructed special tools for them. They also purchased at least
$1,000 Worth of new machinery, and paid Drawbaugh about $440
for services in the course of a year (1875—76) (defts, i, 647; app.
204). They raised and used at least $1,500.

C’Zock Company—The Clock Company, got up in 1878, paid
Drawhaugh $500 in cash, and were to give him part of the proﬁts;
they bought more machinery. They put in about $1,000 (defts, i,
220; ii, 998).

Thus, in nine or ten years before the date of Mr. Bell’s patent,
Drawbaugh’s friends raised and invested nearly $35,000 in his ma-
chine shop on the faith of his inventions and his skill as a designer.
Yet his case depends upon making the Court believe that during this
time he could not ﬁnd $15 for a caveat to cover the greatest invention
of modern times, embodied in practically operative instruments which
he had made and which he could duplicate in a day at a cost ofa dol-
lar or two, —if he had made one.

Hz'spersonal Resources. — They were beyond those of most in vent-
ors. Reserving the details and proof of this for future detailed
presentation, we new state of him :—

He was a skilful mechanic. From the summer of 1867 (at which
time it is alleged that he already had a machine Which would actually
talk) down to the beginning of this suit, he enjoyed the free use of
the machine shop ﬁtted up during that year by the Faucet Company
or "Drawbmzy/z lilamyfactm-z'ng Company.” It was run by water
power and contained lathes, drill presses, milling machines, etc., be-
sides some woodturniug lathes. This machinery was added to
from time to time by the various other concerns named. In 1868,
with part of the proceeds of the faucet patent ($5,000 cash and
$1,000 stock), he bought a double house and blacksmith’s shop, pay—
ing $2,000 cash. Until 1876 he lived in half of it, rent free, 0

HIS INTIMATES DISPROVE THE CLAIM. 239

course, and let the other half to a steady paying tenant for $110 a
year. In the spring of 1876 he sold it to his tenant and bought an-
other house in a neighboring town. During the nine years before
midsummer of 1876, he was, according to the answer, possessed of
practical telephones and refrained from making them for sale or from
presenting them at the Patent Ofﬁce, merely because of his want of
proper tools to make them, and because he could not even raise
money enough to ﬁle a caveat ; yet the fact is that in that time he
advertised himself as a model maker and constructor of electrical
machinery, and during the period helactually received into his own
hands in cash about $l0,000. Part of this was for work, part for
patents sold; a small part was the proceeds of his house, bought out
of his money and sold again. He spent the money, but not on
telephones. He invested part in a house, but this gave him borrow-
ing power.

It is folly to expect the Con rt to believe the allegations in the an-
swer about poverty (no stronger than the defendants felt that the
case required) in the face of the unquestionable proof of these posi-
tive facts. (See the details, p. 336, infra.)

Drawbaugh’s Business Connections—The Testimony of those con-
nected with him and with his Shop.

We now proceed to state more in detail the surroundings and
occupations of the claimant; to inquire what those nearest to him
know about any telephone.

Nail—Plate Feeder and his Partners in Hall. —From an early time
Mr. Christian Eberly, owner of the grist mill and nearly half the
houses in the village, had furnished him with money for different
inventions for a half interest. In that way they became jointly in—
terested in a “ steam injector” (really a steam siphon pump), stave
cutter, balance ryne, mill tram and nail-plate feeder (C. Eberly,
defts, i, 120). He did repairs on Eberly’s steam planing and saw
mill, and made patterns, etc., for brick machinery for Eberly and
Lee (Drawbaugh, defts, ii, 738, 919). The partners in the nail
machine were C. Eberly, Gov. Geary, of Pennsylvania, and 13. Frank
Lee, brother-in-law of Gov. Geary (Fettrow, defts, i, 374, x—ans.
103; Drawbaugh, defts, exhibits, p. 63). The patents were Dec.

240 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

12, 1865, and Nov. 19, 1867, and the matter ran at least into 1872.
The arrangement was that Eberly (who was then wealthy, Draw-
baugh, defts, ii, 917, ans. 729) and Lee and Geary paid all expenses
and paid Drawbaugh for all the time he spent experimenting, etc.
(Drawbaugh, defts, ii, 914 . According to Drawbaugh, the amount
Eberly alone paid him would seem to be over $500 (Drawbaugh,
x 1200, defts, ii, 1015). Drawbaugh exhibited the nail machine
and rotary pump at the State fair in September, 1868, and his pump
and faucet in October, 1869 (Weaver, complts, i, 381, and the
newspapers of the period referred to by Mr. lVeaver). Yet he did
not exhibit a telephone.

During these years, then, Drawbaugh was in business intercourse
respecting his inventions with men who had such belief in them

that they were ready to invest money (and Eberly did so in

respect to quite a number of them). One of these men, Gov.
Geary, was a man of such position that he had but to exhibit for
ﬁve minutes Drawbaugh’s “ satisfactory, practical, operative instru-

’ if any such existed, to have commanded all the attention

ments,’
and aid that any inventor could wish. That no such results followed
is conclusive proof that no such exhibition was made; Drawbaugh
does not pretend that there was; and that again is proof that no such
thing existed to exhibit.

Lee died in 1877. Gov. Geary died in 1873. Eherly’s deposition
showa that he never talked through a talking machine, nor tried to,
and that what was shown him (whenever it was) made no impression
upon him. He is wildly wrong in all his dates and facts. Mr.
Eberly was called very largely in an attempt to prove that Draw—
baugh had applied to him for aid on the speaking telephone,and had
been refused. The most vigorous leading and entreaty on the part
of defendants’ counsel could not get Mr. Eberly up to that point.
He testiﬁed (defts, i, 121) :—

“ Q. 23. then Mr. Drawbaugh showed you his talking machines,
or machines for conveying sound to a distance, state whether or not
he prOpOsed to you to go into partnership with him, and furnish the
money for that, also, as you had, before that time, done on the other
inventions.

“A. Not altogether; he intimated that he would take me in.
" Q. 24. Take you how?

NAIL-PLATE FEEDER COMPANY. 241

"A. As partner, as I did before that, still.

”Q. 25. Did you decline the proposition or intimation?

“A. I don’t rccollectns I said anything, or What I said.

"Q. 26. What I want to get at is, whether you accepted the
proposition or not.

“ [Objected to, 6250.]
"1. I did not; and my reason for not accepting it—takiug no

part in it —- was that the last invention, the nail feeder, Wasn’t alto-
gether completed, and he was still experimenting on that.

“Q. 27. Can you state the time, or about the time, when Mr.
Drawbaugh intimated that he would take you into partnership on

the talking machine ?
"A. About the last of— during the time I lived at New Cumber—

land —— about the last of that.” -
He says he lived at New Cumberland, April, 1867, to December,

1870.

"Q. 39. State anything you know about Mr. Lee’s knowledge of
or connection with this talking-machine invention of Mr. Draw-
baugh’s.

"A; Mr. Lee and I frequently went from New Cumberland up
to Mr. Drawbaugh’s shop, and Mr. Drawbaugh would explain and
show Mr. Lee, still, the Workings of this electricity, and on the way
home once, Mr. Lee told me that he thinks Mr. Drawbaugh would
like him to take an interest as a partner in this matter.

"Q. 40. Is Mr. Lee living or dead?

“A. He is dead.

”Q. 41. \Vhen did he die, to the best of your recollection?

"A. About 1872.”

Clearly, the impression left on Eberly’s mind (whatever be the
true date) is that Drawbaugh had not got to the point Where it
seemed worth while for any one to spend money, even in experi-
menting; and this old friend and partner turned away without even
listening at it. There was an intimation that Drawbaugh would
like some more money for a new thing, but there was not enough in
the intimation even to call for a reply or receive one. The attempt
to get Mr. Eberly to say that Mr. Lee, now dead, was applied to,
fell to the ground. As Mr. Lee was living at least in the fall of
1676 (he then had a suit with Drawbaugh), this witness’s testimony
is certainly Worthless. Thus he testiﬁes (defts, i, 120) that he saw
instrument A soon after the lst of April, 1667. The defendants,
stating the schedule of alleged dates, give 1874 as the earliest when
they wish to pretend that this instrument existed. Eberly professes

to have known of Drawbaugh’s work for a number of years after

242 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

this, but the state of his knowledge on the subject is shown by his
cross-examination (defts, ii, 125) :—

“X A. 53. When I talked about his explaining to me, he would
more fully show me the clock and what effect, electricity had, and
among it, then, he would then state that it would carry sound by it,
then, but he would not explain. He said he could do mostanything
with electricity,—that is as near as I can get at it; he would not han-
dle these things here, but he would explain that to me; during the
time when I moved to New Cumberland (from 1867 till 1870) during
that time we talked more about this carrying sound by wires than
we did afterward; after I moved to Shiremanstown we didn’t talk so
much about it.

"Ar Q. 54. In the thirty—ﬁfth interrogatory you are asked what
he said to you about the talking machine during the years ’71, ’72
and ’73, and your answer was, “He did. He said that he would have
it completed’; then you remember more particularly what he said
about having it completed?

“A. Nothing more than it would answer the same as the tele-
graph. He didn’t say how it would be (lone, no more than by
carrying the sound; he didn’t saw how it would be operated, not
that I recollect; he said it would come much cheaper than the tele-
graph; that is all I recollect; it is so long.”

"X Q. 62. lVere you at Mr. Drawbaugh’s place more or less
during the years 1877, 1878 and 1879'?

"A. I was there several times, — not often. .

"X Q. 63. Did you see any clocks when you were there at those
times?

“A. I don’t mind of seeing any.

"X Q. 64. Do you remember seeing any talking machines dur-
ing those Visits?

"A. No, sir.”

An attempt was made to have Drawbaugh help this out on his
direct examination by getting him to testify that he showed it to
“ those parties,” the only two named anywhere in that connection
being Lee and Eberly; and that what he thinks they meant by
thinking it “ not complete ” was that they thought he ought to be
able to place it on a table and hear it all through the room. That is
disproved by Eberly himself, who does not pretend to have heard it
at all, or even to have attempted to listen at it. Drawbaugh says
that he does not know why it was that Mr. Lee did not go into it
(X-ans. 818, defts, ii, 937).

John F. Lee, partner of Eberly, and brother of Mr. Frank Lee,
continued the lumber business at New Cumberland, still employing
Drawbaugh to do repairs. The defendants called him twice to

NAIL MACHINE COMPANY. ——FAUCET COMPANY. 243

prove some book entries, etc., but did not ask him about telephones
i (defts, i, 632; iii, 211; app. 199).

i No information is to be got, therefore, from the Nail Machine
Company to prove that Drawbaugh had a talking machine; on the
contrary, this evidence proves that certainly there was no practical
instrument in existence; it proves that, while Drawbaugh was able
to attract such men as Gov. Geary and his family about other
inventions, and had most admirable opportunities to gain, friends in
*; that way, he never succeeded, at any rate, in interesting them in
i any alleged talking machine, and never took one to Harrisburg to

. show.

5 Yet the talking machine if his story be true was the ﬁrst thought
of, the ﬁrst tried for, the ﬁrst conceived of, the ﬁrst reduced to a
practical form, and was by him and others (who did not act) be—
lieved the most valuable.

The Faucet, and his Partners in Hum—A more important con—
cern is the partnership and corporation based upon some patents
which he took out in November, 1866, in terms relating to improve-
ments in faucets. The general story of this is well stated in the
deposition of John B. Drawbaugh, brother and next-door neighbor
of the claimant, who testified (defts, i, 616) 2——

"X Q 121. The Drawbaugh Manufacturing Company was the
company, composed of Gorgas and others, who made your brother's
patent faucet, was it not?

“A. Yes, sir.

" X Q. 122. It was the same concern that was sometimes knowa
as the Pump Company, was it not?

“A. I guess that will want a little explanation to show the differ-
ence. In the commencement the Pump Company and the Faucet
Company Were two different companies. After the invention of the
faucet was completed, Daniel discovered that he was not able, for
the want of funds, to bring the faucet into market. He sold the
right of the faucet to a company by the name of Gardner & Crull
for $1,000, for which he took Mr. Gardner’s paper, with Jacob
Coover’s name as security. Then Daniel turned the faucet into a
pump, or, rather, made a pump on the same principle as the faucet;
on that they formed a company, in the names of Mr. Gorgas, Musscr,
Hursh and others. They were to pay him a consideration of
$6,000, as I have heard. That company established a machine shop
at Eberly’s Mills. which some of the company told me cost them from
$20,000 to $25,000. After manufacturing the pump for about one

244 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

year, they found the pump to be a failure; the Pump Company then
purchased the Drawbaugh rotary molasses faucet from Mr. Gard-
ner and others; the price they paid for it I don’t know.”

The details are stated more fully, and as to some of the earlier
parts, perhaps more correctly by the claimant in his own deposition
(defts, ii, 913), and by W. L. Gorgas, the treasurer or book-
keeper, who was called by the defendants, and testiﬁed with the
books (defts, i, 679). The amounts named by John Drawbaugh
and the general story are, however, correct.

In the winter of 1865—6 the village storekeeper found difﬁculty
in drawing molasses, and asked Drawbaugh if he couldn’t get up
something. The next day Drawbaugh made and carried to him a
crude, working faucet. Crull, the storekeeper, agreed to furnish
money for Drawbaugh’s time and materials while experimenting, and
to patent it and to manufacture it, and did so, taking a half interest
for it. This resulted in two patents, both applied for Sept. 14,
1866, and issued' Nov. 20, 1866. Meantime A. H. Gardner had
bought Crull’s half, and had also bought Drawbaugh’s half, giving
him what. was then a good indorsed note for $1,000 for it. The right
they bought was the right to use the patented inventions in making
faucets, and they paid for all Drawbaugh’s time, as well as for all
material.

His ﬁrst thought of this invention was, if his story be true, after
he had made a telephone which gave some words.

In the spring of 1867 they‘Pump Company ” was got up to make
rotary pumps upon the» same principle as the patented faucet. This
right, which remained in Drawhaugh, he sold to them for $6,000, of
whicl1$5,000 was paid in cash and notes, all of which were paid
within two or three years. and $1,000 in stock. The Pump Company
consisted of six partners, of whom Drawbaugh was one. They after—
wards acquired the faucet interest by taking in the three who owned
that. W. L. Gorgas, one of the partners, and bookkeeper and
superintendent, called by defendants, says (det‘ts, i, 686) : ~—

"X Q. 49. Who were the six ﬁrst members?

“A. William R. Gorgas, Henry S. Rupp, Samuel M. Hertzler,
John M. Hursh, John Sheeley and Daniel Drawbaugh.

“X Q. 50. Who were the three?
“A. A. H. Gardner, Joseph Hursh and myself.”

1869—73.———THE FAUCET COMPANY. 245

The concern employed also a good many workmen. Daniel Rupp,
a witness for the defence, testiﬁed of the Faucet Company (defts, i,
451, ans. 48), "I think at one time they had about eight men em-
ployed.” Mr. Gorgas testiﬁed (p. 685) :—

“X Q. 43. How many hands were employed at the shop from
time to time?

“A. The most we had employed at any time, as near as I can
recollect, were eight.”

Eight hands at one time for a concern that carried on the manu-
facturing business for a number of years means a good many in-
dividuals in all.

The list of the persons connected with the Drawbaugh Manufac-
turing Company is as follows : —

The two originators, Crull and Gardner, both of whom now live
in or close to Harrisburg (Drawbaugh, defts, ii, 910—911, x—ans.
683, 692). -

Partners, as stated by William L. Gorgas (defts, i, 687) : ——-

William R. Gorgas, John Sheely,

Henry S. Rnpp, Daniel Drawbaugh,

Samuel M. Hertzler, Adam Henry Gardner,

John M. Hursh, William L. Gorgas,
Joseph F. Hursh.

There are men of means among them. W. R. Gorgas is worth
$90,000; S. M. Hertzler, $40,000; H. S. Rum), “ well ﬁxed”;
J. F. Hursb, $30,000; John Sheely, $20,000 to $80,000 (see app.
1). 470).

The workmen named by Jacob Carns (complts, ii, 910) and
other Witnesses are:—

Jacob Carns, ' Charles Umberger,
Daniel Drawbaugh, Wm. Luther Gorgas,
John B. Drawbaugh, Samuel Zimmerman,
Hiram K. Drawbaugh, Abner Cadow,

John C. Smith, Richard Eckhurn,
Henry Snaveley, John Schrader,
Arthur Umbcrger, E. B. Hoffman (defts,

246 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

James Brooks (defts, i, p. 43), testiﬁed to by Sadler (complts,
ii, 1044).

David Stevenson, who did not work in the company’s shop, but
was a machine-shop man in Harrisburg, doing a great deal of work
for them, and in intimate relations with Drawbaugh (p. 269, infra) ;
and

W. N. Kline, a workman of Stevenson, doing work for the Faucet
Company, called as a witness for the defendants (defts, i, 654).

Here are twenty—six persons at least whose interest and business
kept them at that shop. What will they say about a telephone?

Not one of them ever saw any complete apparatus; not one of
them ever talked, or attemptel to talk, or was asked to talk, through
it, and at most two of the;n ever saw anything which it is suggested
to have had any relation to one; one thinks he saw B, and another
says that Drawbaugh privately showed him something like B, and
something like the top of F.

It was the defendants’ duty to call all those persons, or a substan-
tial number of them, or to account for their absence, because they
are proving the afﬁrmative, and they have the burden to make a
clear case, and because these men were Drawbaugh’s partners and
his employe’s; it is perhaps enough that they have not done so.

But the case does not rest there. A considerable number of them
were called, some by the defendants for otiterpm'poses, and not one
of them testiﬁed to anything, with the slight exception mentioned,
which shows any knowledge whatever on his part of the existence of
such an invention during the period of the company. Several of
them are called by us, and testify positively that nothing of the kind

was known of, or could have existed there, without their knowlege;

and after we have introduced that positive testimony, together with
some equally positive testimony from the records of the company,
the defendants called two hundred witnesses in surrebuttal and spent
nearly a year; some portions of the evidence show that they labored
with great diligence to endeavor, if so it might be, to produce some
evidence of the period of the Faucet Company. They called two
servant girls employed in Drawbaugh’s family in 1868—9,—Jen-
nie Brown and Maggie Brenneman (defts, iii, surhtl, 103, 163; app.
616—9), —witnesses of ruined character. They said that a talking

FAUCET COMPANY DISPROVE THE CLAIM. 247

machine was commonly talked of everywhere, and at table, where
some of the workmen boarded. They did not produce one of the
partners; they produced only one out of seventeen workman
(Schrader, defts, iii, surbtl, 467; app. 658), and the most that he
could say was that upon a few occasions Drawbaugh privately
showed him in his secret room, a tumbler or a tin can with which he
was experimenting, but with which he did not pretend to be able to
communicate a word, and which he did not Oder to operate in the
presence of the witness, or to talk through; and he thinks that
Drawbaugh once or twice referred to it at table. But they never
called Mrs. Drawbaugh to testify to any such talk at her own table.

It will be of very little avail for the Drawbaugh party to pick up
bystanders, loafers, casual visitors, to say that the thing was so well
known that no man not (leaf and dumb could have lived in that
village or been in the shop without being fully informed of it.
Throughout this case the further We go from the proper sources of
knowledge, both in distance and in time, the weaker becomes the
character of the defendants’ witnesses and the stronger become their
assertions.

William L. Gorgas testiﬁed (defts, i, 677) :—

"Q. 7. Up to what time did that company continue to manu-

facture and sell faucets and pumps?
“A. I think up to the time of the sale to Hauck Brothers & Co.”

"Q. 30. \Vhen, and for what sum of money, did the company
sell out to the Haucks?

"A. The day book shows an entry of July 15, I873, ' By cash
from Hauck Brothers & Co. for factory, machinery, tools, etc.,
$7,000.’

“Q. 31. that was done with that $7,000?

"A. After paying off the debts, a distribution was made, each
full member receiving $650.”

The papers (complts, i, 789) agree with that testimony. The
period covered by this concern was, therefore, from the beginning of
1867, which date is ﬁxed by the questions and answers on the direct
examination of William L. Gorgas (defts, i, 671—9), and the selling
out of their property, July, 1873. The organization continued after
that to complete some few outstanding matters, and May 1, 1876, a
ﬁnal Settlement was had, upon which D. Drawbaugh received $51.13.

248 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

The record shows that we have not overstated the facts.
_Of the partners, there have been placed on the witness stand: ~—

William L. Gorgas, S. M. Hertzler,
William R. Gorgas, John M. Hursh,
H. S. Rnpp, Daniel Drawbaugh.

Full abstracts of their depositions are given in the appendix to this
brief, viz., W. L. Gorgas, p. 2:23; W. R. Gorgas, p. 691; S. M.
Hertzler, p. 243; H. S. Rupp, p. 435; J. F. Hursh, p. 443.

117. S. Rama and J. F. Harsh, called by us, testify positively
that they never heard of telephones before 1877. Mr. Rupp is a
large uurseryman and ﬂorist,—the largest in the county, —— a person
of high standing, of intelligence and education. He was prominent
in the affairs of the company, and an old friend of Drawbaugh, who,
at least twice, went to his house to show him some inventions. He
remembers well when he ﬁrst knew of a telephone at Drawbaugh’s
shop ; what he then listened at but Without understanding words was
B, and this was after he had used a string telephone at Mechanics—
burg in the early part of 1877.

W. L. Gorgas (app. 691) was the bookkeeper and superintendent
of the Faucet Company in 1867—9. The defendants called him to
prove what money was paid to Drawbaugh, but asked him nothing
about telephones.

18'. 1V. Hertzler (app. 243), living at the edge of the village for
twenty years, is a large grower and seller of wine. His place is
much frequented. The defendants called him and asked him about
some little money transactions with Drawbangh in 1874—8, but
nothing about telephones.

W. R. Gorgas (app. 691), who lived near Drawbaugh for a dozen
or twenty years, and until the fall of 1877, was called by the
defendants, and testiﬁed that between 1873 and the fall of 1877,
being in Drawbangh’s shop, Drawbaugh said that he would like to
have him advance some money for a patent, but did not intimate
what it was for ; that is his whole testimony; nolhz‘hg about telephones.

John 0. Smilh (app. 91), J. Brooks (app. 20), and W. N. Kline
(app. 210), called by the defendants, gave the dates when they allege
they ﬁrst knew of telephones; it was long after they left the Faucet

FAUCET COMPANY DISPROVE THE CLAIM. 249

Company. This is very striking in the case of Smith, because
he Worked nearly three years for the Faucet Company, and he
was not asked for any knowledge during that period. None of
these men informed the Court that they had worked for the Faucet
Company, though that fact appeared about Kline on his cross-
examination.

" But the testimony is confirmed by two facts which are entitled
to great weight. The ﬁrst is, that it is highly improbable that the
notes of Stevens, a man of no pecuniary responsibility, would have
been taken without security for so large a sum; and the second,
that Stevens, one of the parties to the transaction, vas examined as
a witness, and not only does not deny the facts to which the others
testify, but is not even interrogated on the subject.” Ely v. McKay,
12 Allen, 328—9.

The complainants called Jacob Carns (complts, ii, 883; app. 439),
and it appeared from his testimony and that of others not only that
he worked in the shop, but that he and Umberger and Schrader
boarded at D‘awbaugh’s. Carns was one of the younger men, and
boarded at Drawbaugh’s for more than six months, taught music to
his daughter, helped Drawbaugh to experiment on various things,
and was just the person who would certainly have been called upon
to experiment on the talking machine, if any such work had been
going on. He testiﬁed positively and unequivocally that he never
saw it, never heard of it, and knows nothing about it.

It cannot be pretended that Drawbangh had any motive to or did
conceal his inventions from the Faucet Company. He expressly
testiﬁes that, working for them by the day, he was not expected to
devote his time to them, but was allowed to work on other mailers

rmd in ’lIRﬂ fllm'a- mnr-In'nm-o: ”1ch H 52%“

[)3ng S, . ey SOllg one, 21.1] 01111 110116;

248 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

The record shows that we have not overstated the facts.
‘Of the partners, there have been placed on the witness stand : ——

William L. Gorgas, s. M. Hertzler,
William R. Gorgas, John M. Hursh,
H. S. Rupp, Daniel Drawhaugh.

Full abstracts of theirdepositions are given in the appendix to this
brief, viz., W. L. Gorgas, p. 223; W. R. Gorgas, p. 691; S. M.
Hertzler, p. 243; H. S. Rupp, p. 435; J. F. Harsh, p. 443.

II. S. Rama and J. F. Harsh, called by us, testify positively
that they never heard of telephones before 1877. Mr. Rupp is a.
large nurseryman and ﬂorist,—the largest in the county, — a person
of high standing, of intelligence and education. He was prominent
in the affairs of the company, and an old friend of Drawbaugh, who,
at least twice, went to his house to show him some inventions. He
remembers Well when he ﬁrst knew of a telephone at Drawbaugh’s
shop ; what he then listened at but Without understanding words was
B, and this was after he had used a string telephone at Mechanics—
burg in the early part of 1877.

IV. L. Gorgas (app. 691) was the bookkeeper and superintendent
of the Faucet Company in 1867—9. The defendants called him to
prove what money was paid to Drawbaugh, but asked him nothing
about telephones.

S. 111. Hertzler (app. 243), living at the edge of the village for
twenty years, is a large grower and seller of wine. His place is

much frequented. The defendants called him and asked him about

' - ‘ tions with Drawbangh in 1874—8, but

W. . '
t. H . H Bates (defls, I, 438, p. 487, infra) says that he ﬁrst s
.1 {mg machines and was ﬁrst talked to abo Law

. t them ' 187
9—16). He had W0”, » u “1 4 (ans.
‘ \Gd f ‘ - . . , -
{all of 1868, m the EM“ Company four months in the

(app. 210), called by me Llulcuuauuo, g... c _
they ﬁrst knew of telephones; it was long after they left the Faucet

FAUCET COMPANY DISPROVE THE CLAIM. 249

“ But the testimony is conﬁrmed by two facts which are entitled
to great weight. The ﬁrst is, that it is highly improbable that the
notes of Stevens, :1 man of no pecuniary responsibility, Would have
been taken without security for so large a sum; and the second,
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 interrogated on the subject.” Ely v. Mclfay,
12 Allen, 328—9.

The complainants called Jacob Carns (complts, ii, 883 ; app. 439),
and it appeared from his testimony and that of others not only that
he worked in the shop, but that he and Uinberger and Schrader
boarded at Drawbaugh’s. Carns was one of the younger men, and
boarded at Drawbaugh’s for more than six months, taught music to
his daughter, helped Drawbaugh to experiment on various things,
and was just the person who would certainly have been called upon
to experiment on the talking machine, if any such work had been
going on. He testiﬁed positively and unequivocally that he never
saw it, never heard of it, and knows nothing about it.

It cannot be pretended that Drawhaugh had any motive to or did
conceal his inventions from the Faucet Company. He expressly
testiﬁes that, working for them by the day, he was not expected to
devote his time to them, but was allowed to work on other matters
and to use their machinery (defts, ii, 880).

Now all this testimony -— as strong under the circumstances from
those who are not called as from those who are—makes it very
certain that no telephone existed at the shop during the time of the
Faucet Company; but testimony from memory is the least of the
proofs that company furnishes. I

See/ting for an Invention ofDrctwbaugh’s in 1868—1873, the Faucet
Company found no Telephone—That company wanted to devote
their capital and machinery to exploit some other invention of Draw-
baugh’s, if they could ﬁnd one. They sought one, and found none;

250 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

and in this search the telephone was neither offered nor mentioned.
This is a fact, proved by records, and not denied.

In cross—examining the complainants’ witness, Jacob Carns
(complts, ii, 922), Drawbaugh’s counsel asked if Drawbaugh did
not put up a complete gas apparatus (on a small scale, of course) to

exhibit his gas governor with a view to getting the Drawbaugh Manu-

facturing Company to take hold of it and put it upon the market,
and whether he did not " try to get the company to add the stamp
canceller to the articles they were mnnufacturing and getting out,”
and " to take hold of the lamp-shade press and Work that up also,”
and “ to take hold of the blower,”——to some of which questions the
Witness replies yes; to one he replies that the blower was not a.
success, and to the others that he does not remember. This of
course means that the claimant had stated to his counsel that he
did so try.

The company did not take them up because for various reasons
these particular things did not promise success, not because they
were indisposed to exploit his inventions; on the contrary, they con-
tinued to invite him. The chronological sequence shows this.

Drawbaugh testiﬁed (defts, ii, 1001) :—

"I made the second [gas governor] more complete in order to
show it to the Drawbaugh Pump Company for the purpose of illL s-
trating it to them, for the. purpose of getting them to take an interest
in it. There Were some inquiries made about the machine, and it
Was found that the gas company would not allow it to be attached to
the meter. I guess for that reason there was nothing done. They
didn’t take an interest in' it.”

The date of this is ﬁxed by the records of the association (complts,
ii, 1130—1; iv, 317—8) :—

" Jan. 29, 1869. Daniel Drawbaugh agreed to give his gas
governor that he is now preparing to secure a patent for to the com-
pany, for the company’s use and beneﬁt, the conditions to be agreed
upon hereafter.”

The exhibition in consequence of this vote, and which is referred
to in Drawbaugb’s deposition, is described by Mr. H. S. Rupp
(complts, ii, 1130) :—

"Q. 13. Did your company meet and examine the gas governor

referred to in that request?
“A. Yes, sir.

THE FAUCET COMPANY DISPROVE THE CLAIM. 251

"Q. 14. Was it an accidental meeting, or did the members of the
company meet especially for the purpose?

"A. It was a special meeting called for that purpose.

“Q. 15. V\ here did the members meet and examine this gas
governor? And giVe some description of the exhibition of it which
was made, or attempted to be made, on that occasion.

"A. They met at the company’s shop ; Mr. Drawbaugh had every-
thing prepared to manufacture the gas and show the lights when the
members met. The gas was made outside of the building near the
blacksmith shop. The lights were ﬁxed, I think, on the second
ﬂoor, and pipes were laid to convey the gas to that story, — it might,
possibly, have been the ﬁrst. It worked very well for a while, but
the seam of one of the retorts opened by being heated, and that ended
the exhibit of the gas governor.”

Mr. Rnpp then continues about the next proposal : —-

” Q. 16. In the minutes of Jan. 29, 1869, already referred to,
I ﬁnd the following: ' On motion of William R. Gorgas and
D. Drawbaugh, it was agreed that Henry S. Rnpp be authorized to
advertire in the Palrz'otand Union, and State Guard, Harrisburg,
one insertion each week for three weeks, that the company do cus-
tom work and get up designs, etc.’ I infer from that that the com-
pany was seeking to do some Work besides the manufacture of rotary
pumps and measuring faucets; what is the fact about that?

“ A. The fact is that they were seeking other work.

" Q. 17. In the minutes of the meeting of March 26, 1869, I ﬁnd
the following: ——

" 'On motion of Henry S. Rupp and Daniel Drawbaugh, it was
agreed that Daniel Drawbaugh shall, as speedily as possible, not to
interfere with other necessary Work, get up and make a screw ma-
chine for the use of the shop and for its beneﬁt.’ What new project
and kind of work for the company did that refer to?

" A. It referred to getting up a machine for manufacturing
screws.

" Q. 18. What brought that project before the company, and
state what prOpOsals and suggestions Mr. Drawbaugh made about it,
so far as you can recollect?

" A. I don’t know that I am able to say exactly what brought us
to ——~ I think there was a gentleman there from Buffalo, a Mr. Dor-
sheimer, a relative of Mr. Gorgas, who told us about a manufactory
that manufactured screws, stating that it was a paying business. Mr.
Drawbaugh said that he could easily invent a machine or get up a
machine that Would manufacture screws; I think it was this that
led us to this project of manufacturing screws.”

A year or more later (ini1870) the association reorganized as a
corporation under the statute, with a capital of $30,000. See Mr.

252 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Rupp’s certiﬁcate of stock (complts, i, 1121), dated October, 1870.
It took the name “ Drawbaugh Manufacturing Company.”

Its business is stated in its advertising billhead produced by its
bookkeeper, W. L. Gorgas (defts, i, 688), to be the manufac—
ture of

"Drawbangh’s rotary power pump, for mining and factory use;
Drawbaugh’s self-measuring faucet, for drawing and measuring mo—
lasses, honey, tar and all other viscid liquids. Also stave cutters,
stave jointers, mill trams, hydraulic rams, etc. All kinds of job
Work and building of special machinery solicited and attended to
promptly.”

Drawbaugh was the master mechanic it employed to design all
special machinery (dcfts, ii, 934—5).

It sent Drawbangh to the State fairs of 1868 and 1869 to exhibit
the machinery which he had invented and it had manufactured
(complts, i, 381, 486).

The records of the meeting of the corporation, held March 25,
1870, at Eberly’s Mills, state (complts, iv, exhibits, 319) :—

" The election of oﬂicers, etc., of the company for the ensuing
year, being unanimous, was as follows, viz. : W. R. Gorgas, presi-

dent; M. B. Mosser, secretary and treasurer; John Kntz, superin-
tendent; D. Drawbaugh, master mechanic and dranghtsman.”

So they then trusted his mechanical skill.

Mr Rupp sums up the whole situation 111 a statement which 1s but
the inference the Court must d1aw from the facts, but which it will
draw with more conﬁdence since it is positively testiﬁed to as a fact
by the most active member of the company and contradicted by no
one (complts, ii, 1131) :—

“Q. 21. Had Mr. Drawbaugh, to your knowledge and recollec-
tion, ever asked the company or suggested to the company that they
should 111annfacture or patent talking machines or speaking tele-
phones?

"A. No, sir; he had not. ,

“Q. 22. If Mr. Drawbaugh, while the company existed, and
before it sold out to Haucks and divided its money, had brought to
the attention of the company a talking machine or telephone by
means of which persons at different places could carry on a conver—
sation with each other along a wire, and had demonstrated to them,
by having the members of the company actually carry on conversa—
tion with it, that it actually was a practically succesz'ul machine, and

THE FAUCET COMPANY DISPROVE HIS CLAIM. 253

had represented that in his opinion it would supersede the telegraph,
and that there was a fortune in it, do you think that the company, in
your opinion, would or would not have taken some steps at least
towards embarking in such a business?

"A. If the members of the company could have been convinced
that the facts as stated concerning the telephone were such, the com-
pany certainly would have taken hold of it.”

"Q. 48. If, during the existence of said company, Mr. Draw-
baugh had had at the shop, in a ﬁt condition for actual use, a practi-
cally operative speaking telephone, by means of which a conversation
could be carried on between persons at different places along a.
wire, will you tell me, from your knowledge of the relations of the
parties, whether, in your opinion, he would have communicated the
fact to the company or invited it to take up the subject upon some
terms and conditions?

"A. I think he would, for the reason that he showed us other
machines that he had invented the time we Were running the shop.

” Q. 49. Please tell me whether the people in the neighborhood
of Eberly’s Mills constitute a prosperous, forehanded and well-to-do
community, or the reverse.

"A. They constitute a prosperous and enterprising people.

“ Q. 50. If Mr. Drawbaugh, for a number of years before speak-
ing telephones were heard of elsewhere in the world, had possessed
a practically operative and successful talking machine, by means of
which persons at different places could carry on conversation over a
Wire, and had demonstrated its successful character by causing a.
considerable number of persons to actually talk and hear conversa-
tion through it, and had represented that it would supersede the
telegraph, and that there was a fortune in it, and that he was ready
to give a half interest or other considerable interest in it to whoever
would furnish a few hundred dollars to patent it and buy materials
for nakiug the instruments, would he, or would he not, in your
opinion, have been able to raise the money in the neighborhood?

"A. If it could have been shown to the people that such were
the facts, as stated, in my opinion he would have had no trouble in
getting all the money that he would have needed.”

Finally he states the whole in a nutshell (p. 1144) : —

“A. 91. . . . Circumstances and events transpiring during that
time show without a doubt that there was nothing said about the
telephone.”

This is perfect proof that the invention of a practical speaking
telephone was never communicated to this company, nor to any of
its twenty—ﬁve or thirty members or workmen during the whole of
the six years ending July, 1873. But to this is added the speciﬁc

254 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

testimony of a considerable number of the parties themselves put
upon the witness stand. These facts are not contradicted.
Nothing can be more conclusive. This concern, with ample capi-

tal, was formed to made his pumps; then they bought his faucet

patents; then the propriety of making his stamp canceller, his lamp-
shade press, his blower, his gas governor, and a screw machine to
be invented was discussed ; then they reorganized and took his name.
“ The Drawbaugh Manufacturing Company ”; then they advertised
themselves as makers of six of his inventions by name, and " etc.” ; but
they never touched a telephone; they never tried one; one was never
otl'ered to them; they never knew of one; yet his case depends upon
making the Court believe his story that all this time he had a tele-
phone he could read neWspaper advertisements through, freely made
known to all, believed to be the greatest invention made, and to offer
an assured fortune it" only he could get a few dollars to patent it and
to make a set for sale.

One more fact attaches itself directly to the period of the Faucet
Company; In July, 1873, when they sold out to Hauek Bros. & Co.,
the proceeds ofthe sale were used to pay their debts, and the re-
mainder divided among the stockholders, of whom Drawbaugh was
one. He received for his share $425. He had then (so they wish
the Court to believe) had perfect instruments for six years, and knew
that $60 spent in obtaining a patent (for he testiﬁed that that is the
amount it would cost, — and it is ample) would make his fortune.
That $425, suddenly paid him, one would think that he Would have
used as a means of obtaining the fortune so near at hand. What he
did do was to lake $300 of it to pay off a bottom mortgage on his
house, worth over $2,000; a debt so secured does not bring to bear
the pressure of necessity.

Only two witnesses (outside of the Drawbaugh family) refer to a
talking machine while they worked for the Faucet Company. Hoff-
man (defts, i, 502) misstates the time when he worked there, but still
he did work there two months in 1868, and his whole testimony about
it is as follows : ——

" Q. 6. Do you see the instrument here which you then saw him
working upon?

"A. I do, or one like it; this here [indicating F].

smug. -«.- .

. e. mi, w»?

:. Mir knitwe‘nu-L“ we.

FAUCET COMPANY—HOFFMAN ; SCHRADER. 255

, “ Q. 7. What was he doing to the instrumentF, or any part of it,
1 at that time?

"A. I seen him turning this wooden top and ﬁtting it on , at
i that time there was nothing but the cleai glass , there was no coating
1 inside.
1 " Q. 8. How happened you to see him turning that top and
: mouthpiece ?
g "A. I was down at the shop; I used to go down there in the
1 evening, after work hours.”

That is the most that he pretends to. His deposition is found
upon analysis ((1. V. app. p. 134) to be worse than weak.

1 John O. Sclzrader. —After all our proof about Drawbaugh’s rela-
tion to the Faucet Company, and when the defendants were clearly
called upon to do their utmost to get some one from that shop to
swear to something at the time, they called John 0.191111111161 (defts,
iii, suibtl, 467). He, testifying afte1 sixteen years, says that he

went there in November, 1868, and left in April, 1869; his whole

testimony about it is as follows:—

“ Q. 12. Whilst you were working there for the Drawbaugh
Manufacturing Company, as youthave testiﬁed, did you ever see
any talking machines?

" [Objected to as not in rebuttal.]

"A. M1. Drawbaugh on a few occasions took me up to his private
room, which was over the machine shop, and there showed me a
machine which he called a talking machine.

“ Q. 13. Did he explain to you what it was for and how it was to
be used? And if yes, tell, so far as you can recollect, What he said
about it.

" [Same objection]

"A. I do not recollect that he explained to me how it was to be
used, but I do recollect distinctly that he said it was for the purpose
of talking between distant points, as, for example, between Eberly’s
Mills and Har'risblug, which, I think, he used as an illustiation. He
also made remark that it might be used to take the place of the tele-
grap ph.

“'[Objecled to as hearsay]

" Q. 14. Will you look at the exhibits now produced before you
[A, B, C, D, E, F, I] and state whether or not you recognize any
of them as instruments which you saw at the machine shop at
Eberly’s Mills whilst you worked there?

“ [Same objection.]

256 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

" A. The only machine which I recollect is this one, Exhibit B.

" Q. 15. When you saw it there was it in the same condition in
which it now is?

“ A. No; there was a diaphragm on the end of the tin cylinder
towards the electro—magnet, and I think an iron armature was fastened
across the diaphragm, —I don’t know whether it was iron or steel.
The bobbins on the electro-magnet were perfect at that time. They
have all gone to pieces 110w, you see. I also recollect seeing some
wooden pieces like the mouthpiece on Exhibit F lying on Mr.
Drawbaugh’s table.

" Q. 16. Of what material was the diaphragm composed?

" [Same objection.]

" A. I think it was a piece of bladder.

“ Q. 17. lVas the electro—magnet at that time of the same size as
the one now on the instrument B, or did you, at different times, see
diﬂ‘erent electro-niagnets attached to it?

" [Objectecl to as leading in form, improper in suéslance, and not in
rebuttal.]

" A. The electro-magnet on one occasion was, I think, as near as
possible the size of the one on Exhibit B, whereas, on another occa—
sion, a larger pair of electro—magnets was used.

" Q. 18. State whether or not, whilst you boarded with Daniel
Drawbaugh, you ever heard his talking machine spoken of in his
family.

" [Objecled to as not rebuttal, and calling for hearsay]

" A. I do recollect Mr. Drawbaugh speaking of it at the table on
several occasions, and he spoke about it in the same spirit and in the
same way that he talked to me up in the shop — that it Would take -
the place of telegraphing, and that you could talk between distant
points.

" Q. 19. Did Charles Umberger and Jacob Carns board at Draw-
baugh’s all the time you did, or did they come there after you?

“ A. They came there the same time I came there, and they stayed
there after I lef .”

If Drawbangh had had a practical talking machine, through which
he could transmit sentences and advertisements, freely shown, known
to all, and the chief subject of talk in the community, this testimony

never could have been given: it disproves every allegation which

is material.

Mill Bus/z Company—The “ Mill Bush Company” was a partner-
ship formed to exploit a “ mill bush” or hearing for millstones,
invented and patented by J. H. Teahl, at one time owner of what
was formerly known as Teahl’s, and later as Etter & Shanklin’s Mill.

MILL BUSH CO.—-HAUCK BROS. & COMPANY. 257

g
l
l
i, There were ﬁve partners—Teahl, Sadler, D. Rupp, Bergner and
i Lambert. They raised $1,500 to $2,000, and spent it in Drawbaugh’s
{ shop in 1868—9, chieﬂy in getting up special machinery, which
i Drawbaugh designed for making the mill bushes.
1 The testimony about this enterprise is in the following deposi-
l tions: Drawbaugh, defts, ii, 934; Dan’l Rupp, defts, i, 446; W.
: Sadler, coniplts, ii, 1037.
; None of these ﬁve persons—Teahl, Sadler, Rupp, Bergner or
] Lambert—ever saw or heard of the alleged talking machine during
the life of the Mill Bush Companya
Teahl died at York, Pa., in 1883, and could have been called.
Daniel S. Rupp, called by defendants, testiﬁes (dcfts, i, 446) :—

‘ “ Q. 5. When was the ﬁrst time he shmved you his talking ma—
1 chines ?
’ “A. In 1874.”

He does not pretend to any earlier knowledge. The defendants
did not inform the Court of his earlier presence at the shop; that,
and his connection with the Mill Bush Company, came out on cross-
examination (1). 450). I

Mr. Sadler, called by the complainants, testiﬁes (complts, ii, 1037)
very positively that he never heard anything about it.

At the end of three years of testimony, and as the last of two hun-
dred witnesses in so-called surrel’nlttal, the defendants called Thomas
Bergner ('defts, iii, surbtl, 1137), who could only say that about
1868 or 1869 he heard mention, he thinks, of a talking machine,
and Drawbaugh invited him to see it once; he does not say when.
this invitation was. " But I never saw it at no time.”

Hauck Bros. (1’: 00. — The next occupants of the shop were Hauck
Bros. & Co., who, in July, 1873, bought out the Drawbaugh Manu-
facturing Company for $7,000, and carried on business at his shop.
This faucet business was carried on by the Haucks actively for a
year, and after that was carried on somewhat, but only at intervals.
During the principal part of the ﬁrst year, David A. Hauck, a very
skilful and intelligent mechanic, was the active man, and personally
worked at the shop most of the time. His relations with Drawbaugh,

258 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

which will be more fully dwelt on hereafter, were such that if talk-
ing machines had existed there he would have known it.

Samuel F. Hauck was there somewhat. Davis Major worked for
them at the shop one month, and Edward Nichols three months, in
the spring of 1874. John B. Drawbangh and George 1V. Draw-

], baugh worked for the Haucks also.

Here was another group of men ready and able, in 187g, to invest

$7,000 cash on one of the claimant’s inventions.

We have called David A. Hauck (complts, i, 786), Samuel F.
Hauek (66. ii, 1160), Davis Major (177. i, 849), Edward Nichols
(lib. ii, 852), and their testimony is positive that they neither saw
nor heard of any talking machine there, while Drawbangh’s relatives
give very weak depositions. The deposition of David A. Hauck is
peculiarly strong because it contains a substantial admission by the
claimant himself, given in the faucet interference case, that Hauck
had a good knowledge of Drawbaugh’s inventions generally, but never
heard of the existence of a talking machine at Drawbangh’s shop
before the community had received the telephone from Bell.

This is fully stated p. 225, supra.

The Haueks employed John B. Drawbaugh for a. year steadily
(1873—4), and Wanted Daniel to work for them at his own price, but
he preferred to do job work and work for himself.

So much, therefore, for what was not done or shown at that shop
during the period of the Haucks, according to the knowledge of
those who worked there; but another side of the testimony for that
period is equally important.

The story which the claimant Wishes the Court to believe and
which the defendants virtually put into their answer, is, that from
the beginning of 1866, or 1867 to 1880, and, therefore, including

_ the time of the Haucks, he labored incessantly at the telephone,
never laying it aside for a moment except when compelled thereto
by the necessity of some gainful work. During the years 1873—4,
he experimented with and made all the things enumerated on p. 315,
infra, and the Court will consider what the making those things
means. It means that his mind was free to work on them; that he
had ample leisure for long and tedious experiments; that he had
not the slightest trouble in ﬁnding materials for these things, which

1873—5. _- HAUCK BROS & 00. 259

must have cost as much as ﬁfty telephones. It means also that

the whole story that he never laid aside telephones except when
pressed for gainful occupation is an absolute falsehood. He is a man
who colors up his story by additiousand suppressions, so that, whether
there is any shadow of foundation for it or not, it is untrue in all the
particulars which he presents as the matter he wishes the Court to
rely upon and act upon.

There are some other things Which attach themselves to this period.
During the time covered by this, not only did David Hauck take him
and his magneto key to the telegraph operator at Mechanicsburg, but
he himself took to Harrisburg and showed his magneto key, of which
he made two different kinds, and an electric clock. Among other
persons to whom he took them during these years were Mr. Lloyd,

an old friend of his, a school teacher at Harrisburg, who often talked
to him about his inventions; Andrew Keifer, the superintendent of
telegraphs for the Pennsylvania Railroad, and Simon Cameron Wilson,
superintendent of telegraphs for the Northern Central Railroad. It
is not Within the bounds of human possibility that a man who had
. practical speaking telephones, or anything that he fancied could be
i dreamed of as speaking telephones, who believed that they would
7 bring a fortune if he could only patent them or get them used, and
‘ who was striving to give them the utmOst publicity, could have been
i in tolerably frequent intercourse with such men as these and delib—
erately have taken to Harrisburg and shown them an electric inven—
tion and not taken the telephone; yet that is what the defendants
have undertaken to make the Court believe beyond a reasonable
doubt.

Axle Company. —This partnership was formed to manufacture
axles invented and patented by Jacob Kline, a neighbor of Draw-
baugh’s. It consisted of Kline, his son-in-law, Capt. Moore, a man
of education and considerable means, and Wilson Bear, all three of
, these living within two miles of Drawbaugh’s shop, and M. M. Grove
I of Harrislmrg, about three miles off. They hired the upper story of
Drawbaugh’s shop, remodelled it by changing the partitions and put-
ting up some outside steps, so they could get to their ﬂoor without
passing through the lower portion still occupied by the Haucks,put
in between one and two thousand dollars’ worth of new machinery,

260 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

employed Drawbaugh as their master mechanic to design and con-
struct a number of special machines, tools, etc., required to make

their axles, and employed him for more than a year to manufacture
for them. Their business ran on from the early part of 1875 until
February, 1876, when, their work proving unproﬁtable, some part-
ners retired, but the operations were still carried on by Capt. Moore,
the moneyed man of the concern, though to a somewhat less extent,
through the harvest of that year and apparently into September,
because the blacksmith, Fettrow, who did their blacksmith work, has
a charge against them in his .books as late as September, 1876
(defts, i, 363). See also Moore, defts, i, 640; Drawbaugh, defts,
ii, 997, 1005, 1023; and app. 204, 215, 226.

Capt. Moore had been and now is superintendent and principal
owner of the Soldiers’ Orphan School, of two hundred and forty
pupils, at Camp Hill, and March, 1875, he sold out his interest,
which he bought back in 1877. Evidently, therefore, he was a man
of intelligence and education, as Well as of means; a man likely to
take an interest in both senses in a speaking telephone, if a practical
instrument of that kind had been presented to him.

This Axle Company became involved in an interference contest in
1875. The patent solicitor who prepared the case and took the tes-
timony Was Mr. Theophilns Weaver, of Harrisburg, an old friend of
Drawbaugh‘s, and during 1875 Mr. Weaver took Drawbaugh’s depo—
sition, — somewhat in the nature of an expert deposition. This led
to considerable intercourse with Mr. Weaver, and inthe spring of
1876 Mr. Weaver proposed to buy out the Axle Company, and
spent two days in examining the shop and taking a detailed
inventory.

The period covered by this company is obviously of great impor-
tance. It includes the year before the Bell patent and the six months
afterwards when Mr. Bell became famous all over the world by his
exhibition at the Centennial. If anything could rouse into activity
a man who had been working for ten years on the telephone and had
instruments far better than those which Mr. Bell exhibited (for this
is the defendants’ story), the events of that summer, which Draw-
baugh admits he heard of, would have so roused him.

The story told for him is, that in January, 1875, he made D and

1
l
1
i
1
l

..MMW« ‘ a“... ...... _ _._....___.A_.._‘_.._.._ .. “.1...“ _..._-..___ w...“

THE AXLE COMPANY DISPROVE THE CLAIM. 261

E. Their construction (whenever made) marks an epoch. They
were the ﬁrst fruits of eight or ten years of labor, if his story be
true. They put an end to all doubts, for, if then what they are now,
they were (and were his ﬁrst) really practical instruments. If for
eight years he had been laughed at as a man who could not succeed,
he then had in his hands the means of convincing everybody that he
had succeeded. If he ever showed to anybody—and he alleges
that he showed to hundreds of persons —the rude, imperfect and
indeed totally worthless instruments which he says he used before
them, he would still more anxiously, gladly and freely have shown
these. Up to that time the most that can be said, if all his story were
true, is that he made instruments which promised. This pair was a
pair which performed. If any fact could be notorious and capable of
establishment beyond the possibility of controversy in his whole
story, it would be the advent of these instruments. Now, how shall
we ﬁnd out whether these instruments did exist during that year?
The ﬁrst thing is, to ask the members of the Axle Company. Sub-
stantially they know nothing of any speaking telephone. Their
depositions, taken by the defendants, are enough to destroy this
defence.

Capt. Moore’s testimony is (defts, i, 649). '—

“ Q. 20. While you were connected with the business there, did

Daniel Drawbaugh ever say anything to you about his talking ma-
chine?

" Q 21. Did he show you one of his talking machines?

” Q. 22. About when was it, as uear as you can remember, that
he ﬁrst showed you his talking machine ‘2

"A. It was duiing the mouth of May, 1875.

" Q. 23. Did he say anything about patenting the machine at that
time; if so, what?

" A. He did; he said that he was unable to procure a patent him—
self, and desired me to go in with him and get a patent for it.

".Q 24. Did he offer an inteiest in the invention to any one who
would go in and get a patent?

"A. Yes, heH was anxious to h1ve some one take hold of it with
him V1 ho had the means to piocuie a patent and put it on the market
I was so fully engrossed with our own p1tent axle at the time that
I told him I did not wish to go into any other new inventions. I
would add, further, that we Uhad also (I mean the ﬁim) another

262 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

patent journal, used for sewing machines, rcapers, etc., which ante-
dated our patent on the axle, and which we were also manufactur-
ind.

0“ Q. 25. At that conversation with Mr. Drawbaugh did he or not
suggest any particular line of business in which he thought the talk-
ing machines could be introduced ?

"A. He spoke of the use of it in cities to supersede the ﬁre alarm,
which existed at that day.

" Q. 26. Please look at the machine B, now shown you, and state
whether or not he showed you that machine in connection with that
conversation.

"A. I believe this to be the exact machine which he showed me
during that conversation.

“ 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 something thin, like a bladder, drawn
tightly and tied around it like a drumhead.

" Q. 28. Do you remember whether or not, while you were eu-
gaged in business there, he had other talking machines around in
different parts of the shop?

" A. 1 never saw any in use; I saw a number of pieces of wood
that were carved out in different shapes; I never had any conversa-
tion with him as to their use.

" Q. 29. Did you feel much interest in his talking machine at the
time ?

" A. I did feel considerable interested in it, and told him zf it
could be put to practical use it would be a fortune to any person or
persons who would succeed in bringing it out; I can’t remember the
words exactly, but that is about what I said to him.

" Q 30. Did you'take interest enough in it to inquire about it
afterwards, or to examine any of the machines that you saw lying
about there?

“ A. I observed him frequently working at machinery that I
thought was connected with this same machine, though put up in
different styles and different shapes; I was not well enough ac—
quainted with his objects at which he was at work, nor his designs,
at the time, to give an intelligible account of their working, or what
they were for. I made inquiry of him as to the purpose of a ma-
chine that was on a table in another room, which worked by a magnet,
and pressed certain keys with the alphabet on, but I don’t know the
object of it now. I didn’t examine any one t/zat had reference to
this talking mac/zine.

" Q. 31. Are you able now to identify any of the machines that
had refercnce to this talking machine other than the instrument B,
now lying on the table before you?

’ " A. I do not think I could recognize any other.
“ Q. 32. When Drawbangh spoke of using the talking machine

THE AXLE COMPANY DISPROVE THE CLAIM. 263

as a substitute for the ﬁre-alarm telegraph, did he state how he
thought of using the machine,— whether by batteries, or by mag-
neto electricity?

" A. He spoke of using it, as this was used, by an electro-magnet;
this is the expression I understood him to use.”

Now this exhibition of B and the small impression it left on Capt.
Moore’s mind (supposing his deposition to be true) are consistent
with the fact that F and B will not talk, and that those were all
Drawbaugh had, but not consistent with the possession of newly

ﬁnished instruments, like D and E; they were always ready to talk,
and of course, during a whole year’s intercourse, Capt. Moore would
hive talked through them, at least have seen them, if they existed.

But to cap the climax they pretend that during Moore’s time,
Drawbaugh had the microphones L, M, G, O, H (v. p. 188, supra).

Moore’s date is between January, 1875, and the fall of 1876; but
any particular date between those two, 1'. e., whether it was before
or after the Bell patent, rests 011 a mere unaided memory.

We show hereafter that Capt. Moore had in mind the magneto
machine which Drawbaugh invented to use for a ﬁre alarm by an
electro-magnet and had that for the sole or chief foundation of his
recollection (app. 209, and p. 318, infra).

The Court will observe that ans. 27 shows that B (tin can)
was in working order, with the bladder 0n. Comparing this with
Drawbaugh’s testimony (p. 153, supra), that B was dismantled
when the next set of instruments was made, this positive fact,
together with Moore’s inability to remember any other, proves that
no better instrument existed at the time when Moore saw it.

Bear testiﬁed (defts, i, 663; app. 215) :—

“ Q. 9. Between the time when you became interested with Mr.
Kline in that patent and the time when the aﬂ'airs of the Axle Com-
pany were wound up, did you know anything about Mr. Daniel
Drawbaugh having a talking—machine invention?

“A. I know ofhis showing me, in one ofthe rooms of the lmilding,
a place in the building, as I remember that he did not invite every one
into, to shon his inventions; I remember otseeing wires in this room;
the recollection of them that I have is that they ran down through
the ﬂoor ; and I remember of seeing other machinery, and cannot say
exactly what they were to be used for, as Itake very little interest in
patent rights; I have no doubt, as Mr. Drawbaughl'ias explained to
me often about his inventions, that he spoke of his talking machines.

264 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

" Q. 10. Have you any recollection, or impression on your
mind, of Mr. Drawbaugh’s asking you to take an interest in his
invention of a talking machine and furnish capital for patenting and
introducing it?

"A. I have a faint recollection.

' “ Q. 11. W’hat is your impression as to the time when you did
that?

" A. At the time when we were manufacturing axles, —— the Axle
Company.

“ X Q. 12. What explanation did he give you about his inven—
tion'!

“ A. Mr. Drawbaugh often explained to me about his inventions,
and told me about them, but I was so little interested in these
things that I really paid no attention to them, and can’t tell now
what his explanation was; I remember seeing one of,his instru-
ments.”

The witness does not even say that it was a telephone instrument;
his answer shows that he does not know. This is all that he can
tell about the matter. He never tried one; he does not know
whether he ever saw one. And yet the defendants wish the Court
to believe that Drawbaugh had just completed D and E, the fruition,
really the ﬁrst fruits, of eight years of-unceasing devotion, practical
instruments, which he “ freely communicated” to everybody, which
the whole community were talking of.

This witness makes a statement interesting as showing the state of

mind to which the defendants bring their witnesses. He has not

the slightest recollection of any talking machines, or even of hearing
of any, but he has been told so often that they were there that he
assumes that and assumes that he must have known of them.

“I have no doubt. as Mr. Drawbaugh has explained to me about
his invention», that he spoke of his talking machines.”

Interpreted by any one not predetermined to be convinced, this
means that this man, to whom Drawbaugh expiaincd all his inven—
tions, has no recollection of any talking machine.

ill. M. Grove, the remaining member of the Axle Company, a
witness of extraordinary dulness, testiﬁed (defts, i, 691; app.
>226) :—

“ 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

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,

now dead. His whole testimony about it is as follows (deﬁs, iii, i
surhtl, 99) :-—— f
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.

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

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 l111vin<Jr the l101sesh0e magnet permanent and 11 slid-
ing core in the electro— magnet. M1. Dr: 111 [11111011 told me this obvi—
ated the objection to its being cumbe1some and unwieldy.‘ ”

He took one form of this instrument to Harrisburg, put it in a
shop ” on exhibition” (Lloyd, complts, ii, 1267), and exhibited it
to, among other persons, his friend, Mr. Andrew R. Keifer, superin-
tendent of telegraphs of the Pennsylvania Railioad (complts, ii,
1280), and to his friend, Mr. Simon Cameron lVilson, superin-
tendent of telegraphs of the Northern Central Railway (complts,
iii, 2065). Lloyd was present at the same time. Drawbaugh
describes the two forms at length (defts, ii, pp. 977—984). He

THE MAGNETO KEY AND OTHER CONTRIVANCES. 323

intended to use this for any purpose where electricity might be

required, and, among others, for ﬁre-alarm signals. Mr. Keit’er,
who put up the Harrisburg ﬁre alarm, says (complts, ii, 1280) :-—-

"11.4. I remember him coming to me at, or in the immediate
neighbmhood of, the Pennsylv 111ia passenger depot, H1'1r1isburg, and
asking me to look at an instrument that he had, 11hich he led me to
infe1 was something that could be used as aﬁre alarm to give signals
over a wire without any battery. I looked at it, and he showed me
the opt ration of it, making some signals by it to show that, it" I rec-
ollect riOhtly, it could he used as a Dtelegraph instrument also. This
was, I think, 111 Mr Walz’ s wholes 1le liquor store, near the 1ailroad
depot, or a room in the immediate neighborhood.”

Mr. Keifer ﬁnished the ﬁre alarm in February,. 1873, and this
was a yeai 01 two afterwards (ans. 2, 5).
M1. Lloyd testiﬁes (complts, ii, 1267) : -—

"Q. 25. Did you ever see any electrical instrument of Mr. Draw-
baugh’s in Harrisburg other than the clock; and, if so, what was
it, where did you see it, and who showed it to you?

“A. I did ; it was an instrument that he called—I don’t know
Whether it had a name, but it was intended to be used to telegraph
without a battery. I saw the instrument in the hands of Mr. Draw—
baugh himself; he had it 011 exhibition in one of those small build-
ings, — either a liquor store or a restaurant, —~— across from the pas-
senger depot. I saw him operate it, in the presence of several,
one of whlch was W’ilson, the mayor elect.

"Q. 26. Was Mr. Wilson then the mayor elect, or what was his
occupation at that time?

"A. He was not at that time, to the best of my recollection; he
was connected with the Northern Central Railroad Telegraph, and
had his ofﬁce in Ehy’s building upstairs.’

"Q. 50. When he showed you, in Harrisburg, the instrument for
telegraphing without a battery, did he seem to attach much impor—
tance to it, 01' have his mind much occupied with it?

“[Ubjected to as incompetent. ]
“A. He seemed to be considm ably attached to it.”

In his advertising card, printed not earlier than June, 1874, this
stands in the largest type (p. 199, supra) :—

" Magneto Electric Mat hine, for sho1t—line telegraphiug, Fire
Alarm and propelling elect1ic clocks. It can be applied to any form
of electric movement. Gives entire satisfaction, using no galvanic
battery.

“ ((1? For simplicity it has no rival.”

324 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

This instrument is of considerable importance in the case, be 'ause
some persons say that he told them that a machine which they think
was a talking machine was to take the place of the existing ﬁre
alarm,—evidently having seen or heard of this, and confused the
recent telephone with the old key. Capt. Moore says (defts, i,
650—1) :_

”Q. 25. At that conversation with Mr. Drawhaugh, did he, or
not, suggest any particular line of business in which he thought the
talking machines could be introduced?

"A. He spoke of the use of it in cities to supersede the ﬁre
alarm which existed at that day.”

" Q. 32. When Drawbaugh spoke of using the talking machine
as a substitute for the ﬁre-alarm telegraph, did he state how he
thought of using the machine; whether by batteries or by magneto-
electricity?

"A. He spoke of using it as this was used, by an electro-magnet;
thls 15 the expression I understood him to use.”

It had a large horseshoe magnet like “C reproduced,” laid ﬂat
like that of “C reproduced," with an electro—magnet—two spools
wound with wire— at the end of the horseshoe permanent magnet.
These were the striking features; the diﬂ'erenees might well be for-
gotten eight years later by a witness who was neither a mechanic
nor an electrician, and had merely glanced at the thing, but paid no
attention to it. Witnesses who swear to C merely by the magnet,

as most of them do, but did not talkthrough it, have undoubtedly
mistaken the two (6. g., Hale, deits, i, 493, 494). This likeness
was expressly referred to in the evidence (complts, ii,-1270) ; but

the defendants have not seen ﬁt to produce the instrument.

This man wants the Court to believe that, in 1865—70 he invented
and constructed prartical telephones which were to “supersede the
telegraph ”; showed it to all the stupidest of his neighbors, but never
to any electrician; and that he had neither time, money nor means
to patent it nor make a set for sale. He expects the Court to do
what he does not tell the Court how to do, — reconcile that story
with the fact that he after that for the ﬁrst time undertook to invent a
new form of teleg‘aph, made two, publicly exhibited them, and took
them to several electricians, either of whom would have jumped at
a telephone it' ever shown. For this, v. p. 322, supra.

EXPERIMENTAL \VORK, NOT ON TELEPHONES. 325

An aulomaticﬁre alarm. — This was made in the usual way, of two
strips of different metals expanding unequally by heat and riveted
together. \Vhen heated, the compound rod would bend, and either
open or close an electric circuit and ring an electric bell. Draw-
baugh describes this (defts, ii, 973—4, 1067). He “ can hardly say”
when he made it, but thinks it was between 1872 and 1874. 'D. A.
Hauck saw it at the shop and talked with Drawbaugh about it in the
fall of 1874 (D. A. Hauck, complts, i, 795).

He made an electric belt during the time under inquiry (Draw-
baugh, defts, ii, 990).

These eontrivances never were and never promised to be of any
money value. He spent 011 them and on his clocks, presently to be
mentioned, time, labor and materials enough to patent a telephone
or make a hundred of them. Most of them were made while the
Haucks worked there, and then, at least, time meant money, for the
Haucks wanted him to work for them at his own price (Hauek,
eomplts, i, 791, ans. 34; 792, ans. 43—4). His, brother Worked for
them a year. A month’s work on faucets for them instead of on
these gimcracks would have given him money enough to patent a
telephone.

A machine to wrap wire with silk or cotton insulation for electrical
purposes. He ﬁrst made a rude one in 1869—70 to work by hand, and
afterwards one to drive by foot power or water power in 1872—4.
The last was quite an elaborate machine, and is described by him
(ans. 1484, defts, ii, 1066). He certainly did not make this in
order to wind wire for the three magnets which he alleges were all he
made for telephones up to that titne. He must have been deeply en—
gaged in other electrical work before he Would get up two machines
for this purpose.

A pump to be placed at the bottom ofa well on a familiar plan.
He made four at least, the ﬁrst about 1868 or 1870 (2‘6. ii, 1007,
X-aus. 1157—9).

A steam sip/ion pump—He got up the patterns for Mr. Steven—
son, and manufactured a few (ib. ii, 1008, x—ans 1161).

A solar transz‘t.— He says he constructed this, though rudely,
from some old camera lenses to correct the time of his magnetic
clock (Drawbaugh, defts, ii, 991, X-ans. 1085—6). He says that he

326 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

made observations with this for a period extending over six, eight or
twelve monthsfpart of the time every day and part of the time every
two weeks (2'6. 1). 1006; ans. 1150—3),—a good deal of time to
spend about clocks. ,

A gear—cutting engine for clocks (2'6. 995, x-ans. 9, 1100). He
says that he borrowed a gear cutter from Mr. Shapley during the
time of the Faucet Company, and afterwards made one for himself.
He showed it to Lloyd & Worley in February, 1878, and from what
he told them they wrote in the Harrisburg Telegraph of Feb. 13,
1878 (complts, ii, 1551) :—

“ Mr. Drawbaugh, in building clocks, has frequent use for a gear ,

cutter, a machine costing six to seven hundred dollars. He invented
and made a gear-cutting attachment for ordinary lathes, by which
Common and bevel gem lug can be out better than by the old machine,
and which costs but from $60 to $70.”

Those contemporaneous printed papers are so invariably wrong!
We know, because many Witnesses have told us, including Draw—
baugh, that he was always at work on telephones, and never left
them except to gain bread for his family, and then with pain and
regret; and we know that he had kept Shaplcy’s gear cutter for
many years; and we know that he was so poor that he could not
ﬁnd $60 to patent a telephone, nor even time and materials to make
one for sale. And what a large number of the defendants’ witnesses
agree in, must be right. But this terrible print which is always the
wrong way for him i

There is worse to come.

Electric clocks.—-- He made, about 1867—72, a clock in a round
case, to be driven by electricity. the pendulum] of an eight-day clock
being used to make and break the current (fl). ii, 946—7, X—ans. 865—
872). It was a very old contrirance, long in general use. Such
clocks have been described in the cncyclopeedias and text-hooks since
1852, and Drawbaugh had one of those encyclopzedias (det'ts, ii, 968).

Then he began to make clocks, the pendulum ofeach of which vas
to break its own circuit, while the electric current was supplied by
earth batteries; or, as the country people called it, by electricity
from the earth. Some of them called it his perpetual—motion
machine. These clocks play an important part in his history,

_.:~ty.~4mwlg«sswsmama v“ - '

ELECTRIC CLOCKS. 327

and consequently in this case, and the dates of each of them will be
hereafter shown (appendix, at end). They may here be generally de-
scribed as follows : —

A mere pendulum; alleged date, 1867.

First clock. — A- pendulum] with a train of Wheels but no dial;
used up to [nuke another; alleged date, 1868.

Second clock. —A clock with a face of bristol board ; at ﬁrst the
works were exposed; then a temporary pine case was made for it,
then a black-walnut case at the end of 1875 or 1876, and, November,
1876, it was taken to Mechanicsburg and set up in the shop of R.
E. Shapley, jeweller, a written contract for the sale of one half the
alleged invention to him having been made and dated Nov. 8, 1876.
It was about ﬁve feet high; carvings were afterwards added (Draw-
baugh, defts, ii, x—nns. 846, 8:50, 851, 855, 858, 896; Shapley,
complts, i, 588, 593).

Third clock. —Built “ a considerable time after” No. 2. About
four feet high and fourteen inches wide. The ease, of black walnut,
partly made by G. W. Drawbaugh, " may have been made in 1875—-
6—7 ” (Drawbaugh, x—ans. 882, 915, 916—919, 920). G. W. Draw-
baugh swears that he made it in the summer of 1877.

Fourth clock,—-— Six feet high and sixteen inches wide. Glass dial,
to show highly ﬁnished brass works. Compensating pendulum.
The case, carved and ornamented, was made chieﬂy by Drawbaugh’s
nephew, George W. Drawbaugh, in 1877, the carvings by Draw-
buugh. These two and the subsequent clocks had works mostly of
cast brass. Drawhaugh made the patterns and had the castings
made in Harrisburg. Afterwards a. larger base was put to it, mak-
ing it over seven feet high, and it was publicly exhibited at Harris—
burg aud elsewhere in the spring of 1878 (Drawbaugh, defts, ii,
ans. 828, 931, 932—934, 939, 940; G. W. Drawbuugh, defts, i, 631,
x 83—4; Shettel, defts, i, 227—9; newspaper articles about it,
complts, iv, exhibits, 327, 330, 386—397).

Mr. R. E. Shapley (complts, i, 600), a jewellcr and clock dealer,
saw these cloeks, and in his judgment the two larger ones would
have cost $75 and $100 respectchly.

All these clocks were built by Drawbaugh out of his own means,

328 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

and with his old “ tools, materials and mechanical appliances ” before
the so-called “ Qlock Company ” was formed, in April, 1878.

There has been produced and put into the case a billhead printed
by Holsinger for Drawbaugh in 1875—6, afac—sz‘mile of which is on
p. 136, supra. It states that Drawbaugh makes a specialty of con-
structing Patent Oﬂice models and electrical machines:

Also the advertising card (p. 196, supra), which says “ models
neatly made to order.”

All these experiments and all this work were done after he had
telephones which would talk—— if his story be true.

What fully, in the face of these facts and advertisements, to pre-
tend that he could not ﬁnd means or had not tools to make a few
dozen telephones, or that the talking machine engrossed all his time
and attention I

These other things, which Were never sold, and never brought a
cent of money, must have cost more time and money tenfold than all
the telephone exhibits he had produced, whenever made. They-prove
that he had resources and tools, that he had plenty of time to devote
to the luxury ofunproﬁtable experiments.

Has the Court any suspicion that all this was to help telephonic
work? He tells us that he made clocks, — three or four,—one in
a carved walnut case, seven feet high; made a gear-cutting attach-
ment to a lathe to cut the gears; made a solar transtt, and observed
the sun daily for weeks and less frequently for months, to regulate
his clocks by ; got up a company to patent and exploit this invrntion,
——-all for the purpose of gaining by it money enough to patent a
telephone! The testimony we refer to is from Drawbangh’s deposi-
tion (defts, ii, 1114) :—

“ Q. 1739. You have testiﬁed in effect that after unsuccessful
efforts to induce different people to take a half interest in your tele-
phone invention and furnish the money for procuring patents and in-
(reducing it into public use, you expected other parties to go into
the manutacture of the magnetic clocks, and to go into the manufac-
ture of the improved faucets: what was your object in embarking
upon the clock business and the faucet business in 1878 and 1879 1’

“A. My object- was this, that I was pretty poor; I was anx—

ions to get some party to take an interest in and run that business,
to make some money by it; I was anxious also to make a raise, to

FALSE PRETENCES ABOUT POVERTY, OCCUPATIONS, ETC. 329

have money to secure my telephone improvements; I know that I
often desired to have made arrangements —get a job —— that I could
make some money for that purpose.”

The absurdity of this is enough, yet there is a further fact. When
he had a chance to work for the Haucks, at his own shop with his
brother and nbphews, he refused to, and spent his time on his proﬁt-
less experiments on a dozen things, not telephones (v. p. 320,

supra).

Pretence that all his time was devoted to telephones; the extrava-
gance of the assertion and its falsity.——The defendants’ witnesses
swear in substance that during all these years they never saw Draw—
baugh work on anything except the telephone. He himself testiﬁes
that he never left it a day except for gainful work (defts, ii,
863) : ——

“ Q. 414. From the time when you ﬁrst invented the old cup
transmitter down to the present time, state whether you ever have or
have not, at any time, laid aside and abandoned your telephone in-
vention, with no intention of ever resuming it. What is the fact
about that?

“A. I have never abandoned it, from the earliest time of work-
ing at it. I have left it lay for a time, that I was compelled to Work
on other work, but never abandoned it.”

“ Q. 416. Why Were you compelled to let it lie at times and de-
vote your attention to other work?

“A. I was compelled for the reason that I was poor. I had a
large family to maintain.”

“ Q. 424. State whether your work in inventing the electric
speaking telephone, and in subsequently improving the instruments,
from the time of the original cup transmitter down to the year 1879,
did or did not consume a great deal of time that would otherwise
have been devoted to your daily labor for the support of your fam-
ily.

" [Objected to by Mr. STORROW, as leading.]

“ A. It did.

“ Q. 425. Did your devotion to this telephone work, during that
period, render it necessary to keep your family more closely, that
is, more economically, than would otherwise have been the case, or
not?

" [Same objectionj

"A. Yes, sir; it was necessary for me to economize; I was con—
tracting debts, which were demanded of me, and I was compelled to
stop working on these machines, to try and get clear of debt; I

330 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

know that went very reluctantly with me, as I was anxious to work
on these machines.

" Q. 426. Did that occur more than once, or only once, that you
were compelled to stop working on these machines, and pay debts
that were demanded of you?

“A. Yes, sir; oftent”

Their witnesses swear up to this point (v. p. 331, infra). Now the
Court knows that this is all false, in letter and in substance, upon the
very point for which it is proffered, and which the defendants have
made material by their answer. That man and these witnesses are
not to be trusted.

But that is by no means the Whole result of this contrast between
the facts and their story. Here we know from the facts proved, and
chieﬂy from his own statements on cross—examination, that to some
extent before 1870, but chieﬂy between 1870 and 1875, he made
these many things which We have enumerated down to the clocks.

We know the fact to be that he has produced only one (A) or at
most three (A, C, I) telephones alleged to have been made during
that period, and there is no proof of any others. There was ﬁfty
times as much Work on these contrivances during this time as there
was on the telephone. Having done all these things, no one of which
was ever really ﬁnished and worth anything, he then began to enter-
tain himself with revamping the old and worthless earth-battery clock,
which, according to his usual custom, he palmed off on his neighbors
as his own new invention. In 1875 he was working a year for the
Axle Company, and was paid by them for two hundred and sixty
days’ work, that is, about ﬁve days in the week, 011 the average.
During that year he made and substantially completed, though in a
not very ﬁnished case, his ﬁrst real electric clock, and got it puﬁ'ed
in the newspaper in November, 1875. He has the audacity to swear
and to produce witnesses to try to make the Court believe that, dur-
ing all those years, including this one, he spent upon the telephone
every minute not employed in gainful work, and to such work gave
his time grudgingly. It is certain that, in 1873 and 1874, he was murh
engrossed with these various electrical contrivances which have been
enumerated; that his attention was particularly absorbed by, and

that in his own mind he attached paramount importance to, his mag-
neto key, which he carried away to show, and which appears adver-

ABSORPTION IN WORK.—TELEPHONE? 331

tised in the largest type in the advertising card (p. 199, supra). Any
Witness who knew what went 011 in that shop must have known of
that; and yet witness after Witness called by the defendants in chief
testiﬁed that they were there repeatedly and for hours at a time,.and
swo1c that the telephone was always worked upon, and, in substance,
that they never knew of anything but the telephone there. The
clock did, indeed, from time to time attract attention, but with that
exception the Court will ﬁnd hardly a trace in their depositions, ex-
cept where it was brought out by leading questions or a searching
cross-examination, of the existence even of this key, to which he
attached such great importance. Now memories which give such
results are artiﬁcial, not truthful. It is such recollection of such men
that the defendants rely 011 to make the Court believe beyond all
doubt a story which every act of this man’s life and conduct, every
piece of writing in the world which relates to him—and there are

many of them—contradict. Men do not so conduct themselves.
Honest memo1ies do not so Work.

That we may be accurate about this, we proceed to quote samples
of the

TESTIMONY AS TO DRAWBAUGH’S ALLEGED ABSORPTION ON THE SUB-
JECT OF THE TALKING MACHINEJlE

No. 119. Daniel Drawbmtgh, defts, ii, 864 —~ " I have never
abandoned it from the ealliest time of Working at it. I have left it
lay 10r a time that I was compelled to work 011 other wo1k,l)11t never
abandoned it.”

"I could hardly say how long I left it lie at one time; it might
have been maybe six months sometimes that I would not do any \voik
011 the machine, but I do not suppose there was a week but wh: 1t I
was engaged 111 the way of studying on it.” \Iy work in inventing
the electiic speaking telephone and in subsequently Imploving the
111st1un1ents t1om the time of the original transmittel down to the
year 187 t, consumed a gre1 1t deal of time th: 1t would otherwise have
been devoied to my daily labor for the suppmt of my family. My
devotion to this telephone wo1k during thlt peliod made it ‘ neces—

sary for me to economize; I was contracting debts which we1c de-
manded of me, and I was compelled to 0stop working on these

" The language below is either “ quoted” from the answers, or taken from ques-
tions which were generally leading.

332 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

machines to try and get clear of debt. I know that went very
reluctantly with me, as I was anxious to work on these machines.”
It occurred often that I was compelled to stop working on these ma-
chines and pay debts that were demanded of me (ans 414, 415,
424—426).

We are not disposed to believe that this is entirely without foun-
dation. He did experiment during all these years on many things.
During the latter part of the time he tried to improve Mr. Bell’s
telephone. The hey to the whole is found in two passages of the
record: —-

Henry F. Drawbaugh says that he heard his brother’s wife " com-
plain that Daniel spent his time experimenting,” “ very often during
the year 1876, and from that up, not from that back” (defts, i, 419,
ans. 45).

II. 0. Springer helped Drawbaugh experiment with the tin can
in 1876, and he speaks strongly of Drawhaugh’s work at that time,
“just studying how to improve it” (defts, i, 192, ans. 58).

Their story that he had then completed all his magnetos, and sub-
stantially all his microphones, is therefore false. And the various
things he did make in 1872—3—4—5 account for all the experimental
work that has been talked of, even without an unreasonable allowance
for exaggeration.

No. 22. Cyrus Orrts, defts, i, 179. From 1871 down to the
summer of 1880 “ I was at the shop the ﬁrst year pretty often, about
twice a week ; next year I was not so often; been going in about
four or ﬁve times in a month, from that time down to last summer.”
During all that time, from 1871 down to 1880, Drawbaugh was still
working at his talking machines, I guess. “They were always im—
proved; I could see it in his improvement. I would still ask him
what such boxes was intended for, and he would tell me it was for a
talking machine. I didn’t ask him many questions. It always ap—
peared to me that he didn’t care about being bothered ” (ans. 15, 16).

“I have been at the shop at ten o’clock at night and he was work-
ing, and I saw the light in the shop. many a time, at twelve o'clock,
and after.” " A couple of times that I was in I found him Working
at boxes for this talking machine. That was the talk all through
the neighborhood, —-the general talk about him working at night at
these boxes, this talking machine.” “ My dWelling was so situated
that I could see the light in his shop from my barn. I could see it
from the Window and from the porch. In summer, when the leaves
were out, I couldn’t see it from the house, but I could see it in the
winter.” “ I would see the light in his shop in winter nights pretty
much every time I would take notice” (ans. 20—23).

ABSORPTION IN WORK. — TELEPHONE? 333

No. 24. Henry 0’. Springer, defts, i, 190. ———Commenced to live
at Eberly’s Mills April 1, 1876. Moved away about the 61h of
January, 1877. Just rented a shop; went there to work; boardcd
himself and lived there. My family stayed at Andersontown
(ans. 3\.

"His whole mind appeared to be on this talking machine. He
told me that many a night he didn’t sleep, just studying how to im—
prove it ” (ans. 58).

No. 27. Ira D. Kalmey, defts, i, 214.——From all I saw of
Mr. Drawhangh and his work, from 1872 clown to 1880, Iwould
say that he was principally working on, and giving his attention
to, the talking machine during all that time (ans. 49).

No. 28. Jacob E. Sheltel, defts, i, 221. —Durit»g the year
(1878) that the company was working at Drawbaugh’s shop at the
electricrclock business, "Drawbaugh told me at different times he
was working up as late as two o’clock in the morning.” I could not
say what he was so working at. " I never saw the instruments or
material that he was working at in the night time, nor he didn’t tell
me what he was working at.” " He was not doing anything for the
company.” There was dissatisfaction expressed by the members of
the company. They seemed to think that he could make no head-
way at all in the clock, but his mind was entirely taken up with
something else, and that he could make no progress, and that was
my reason for selling out of it. " At the close of the year, or nearly
the close of the year, we did suspect that it was his talking machine
that he was working upon, yet he didn’t tell us ” (ans. 51~55).

No. 33. John H. Step/lens, det'ts, i, 261. —I<‘rom 1870 or down
to the summer of 1880, when I ﬁrst saw the talking machines " B ’7
and "F,” "I told them at home as soon as I got home. I went
down there; sometimes it Was ten o’clock at night when 1 got home.
They were wondering where I stayed so long. I told them when
Dan was got through with my work he got to show me his patent
rights, and told them what he was working at. I toltl them about
the talking machines, about the clock, machine to wrap wire, and
different other little things that he was working at” (ans. 19, 20).

N0. 37. Jacob Hawn, defts, i, 282.——From before May, 1872,
to the summer of 1880, he (Drawhaugh) did not manifest so much
interest in the clock as he did in the, talking machine (x-ans. 50).

No. 46. John 0'. Smith, defts, i, 349.-—-From April 1, 1872, to
April 1, 1873, ﬁred a locomotive on the Pennsylvania Railroad, he-
tweeu Harrisburg and Tyrone (ans. 3). While tiring that engine, I
generally spent my Sundays at home with my parents, and with
Daniel Drawbaugh in his shop. Was in Drawbaugh’s shop nearly
every Sunday of that year. Shop generally locked on Sunday. I
would rap or call, or sometimes climb in the window. Would stay
there sometimes an hour, sometimes longer. Saw a talking ma—

334 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

chine there. Talking and experimenting was generally going on
there 011 Sundays. Experimenting with talking machines, and some-
times he had other experiments. The greater part of his experiments
were upon talking machines (ans. 8-«16).

No. 48. Daniel Fetlrow, defts, i, 367. —As I would be in
Drawbangh’s shop from time to time during the years 1875, 1876,
1877, 1878 and 1879, Drawbaugh would generally be doing >ome-
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 bu<iness I Saw Drawbangh doing work on
his talking machines. " He had a machine made to cover the wire,
and I remember distinctly seeing him Work at that part of it, and I

ABSORPTION IN EXPERIMENT. — TELEPHONE? 337

asked him what it was for, at the time, and he told me it was for his
talking machine; that is the reason I know what it is for; I saw
him frequently working at it, but. principally on Sunday; the most
work that I saw him doing at the talking machine was on the Sab—
bath; this was the case that year and other years; in fact, I was
of'tener there on the Sabbath; he would attend church in the morn-
ing and 510 to work in the afternoon (ans. 33).

Between the summer of 1875 and the time the Clock Company
started up, I saw Drawhaugh doing something with his talking ma—
chines, when I would be there at the shop. How often I cannot
recollect. I saw him work at it, but the number of times I cannot
really say, and I didn’t see him every time I came into the shop. I
:aw him doing something with it quite a number of times (ans. 34—
‘ 6).

No. 70. John W Moﬁitt, defts, i, 518. —As I would be in
Drawbaugh’s shop from time to time (from and after 1873), " Mr.
Drawlmugh would have something to say to me about his improve-
ments and his talking machine ; and I remember that he showed me
different forms of curved iron or steel on pieces of wood turned up,
resembling this (holding up D), and also showed me one that he had
improved, what he called the diaphragm, stating that he was making
it of heavy metal, and showed me the machines from time to time,
with these improvements” (ans 17).

During the time (six or eight months from November or Decem-
ber, 1878) I was connected with the faucet business our trouble
was to keep Mr. Drawbaugh away from the talking machine. I was
at his shop frequently when the Electric Clock Company were manu-
facturing clocks there, and during that time I saw Mr. Drawbaugh
at work on his talking machines (ans. 20—22).

No. 81. Edgar W. Olzellz's, det'ts, i, 549 (after January, 1879).
— “I was talking to his wife about how slow we were getting along.
She says, ‘Mr. Chellis, Dan works at the telephone as soon as you
go away, and most every night does not get home until twelve or
one O’clock’; and she said that she had been talking to him about it,
and wanted him to lay the telephone aside and work On the patterns
and give the telephone up; and he said that he would go to the
poorhouse before he Would give up Working on it” (ans. 16). “I
told him (we were in the shop), “Dan, we will hurry up and get
through with these patterns and we will look into this telephone and
I will go in with you’; this seemed to please him, and he talked
telephone all the balance of the (lay, but did not do much, if any,
work” (ans. 17).

No.87. Herman K. Drawbaug/L, defts, i, 576.—“Up to the
spring of 1672 I know that he put in the majority of his time at the
talking machine ” (ans. 17).

“ He spoke to me quite often about getting his talking machine

338 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

patented. So far back as 1872 ﬁrst, he said he would like to get
some men to go in with him and furnish money to get the patent
and run the business” (ans. 69).

From all I know of my uncle Daniel’s work from 1870 down to
1880, I do not think he ev1r laid his talking- machine invention aside
and gave it 11p or gave 111) working upon L“it during that peliod. I
have known him to welk at other work dining the d.1y.I have
known him then to woxk on his talking ma(hine until eleven or
twelve o’clock at night, and sometimes till two in the morning, and I
was under the same impiession as nearly every one else that knew
him, that it was the talki1 g machine that principally engrossed his
study and labo1 during tl11t period (ans. 137,188).

“ It was during all the time that I was there from 1870 till I Went
away in 1872, and then from when I came back in 1874 till I left in
1876, that I knew that my uncle Daniel was Working until midnight
or later 011 his talking machine” (X-ans. 144).

N0. 90. J. B. Drawbaug/e, defts, i, 609.—From 1872 down to
1879 Dan was working on these talking machines pretty much all the
time, as far as I know.

No. 91. George W. mebauglz, defts, i, 629. —— "When I worked
for my uncle Daniel in 1877, most of the time he Was working 011
What he termed his talking machine. He didn’t help me any about
my work, nothing more than to show me how he wanted it done,
and it appeared a good deal of trouble to him to do that, as he was
anxious to go ahead with his talking Inirchine. When I Was Working
for the Electric Clock Company the majority of his time was spent
on his talking machine. He was supposed to have been working for
the Clock Company. Some nights he Would be working 011 the
clocks to make up for lost time in the daytime, and other nights he
was working on his talking machine, seldom leaving the shop before
eleven or twelve o’clock ” (ans. 56—59).

No. 107. Henry Herr, defts, ii, 696 (between 1869 and 1873).
._.“ To the best of my recollection, he drawed my attention to it
every time I came there alter the ﬁrst time he showed it to me , his
object was to secure his invention by getting .1 caveat, or some such
thing, he called it, and he wanted money to get it; he was a
stranger to me (ans 10).

"lwas back and forward to his shop pretty often the ﬁrst few
yeais; I couldn’t (rive the numbel of times; [think I had a new
drive pipe, and then he killed time, as I thoutrht, with this talking
machine. \thn anvthing would come into his mind about it, he
wou‘d let everything go Dand leave my work; he would drop my
work while I was there. and he disappointed me several times that
I had to go back again; he said he Worked day and night at this
other machine. What I understood him to say was, “that he,
worked day and night at his talking machine, and whenever he had

ABSORPTION IN EXPERIMENT. —- TELEPHONE ? 339

nothing on hand that was too urgent upon him, and I know that he
dropped my work to work upon it.’ I think he told me that more
than once” (ans. 29—31).

No. 108. Joint Wolf, defts, ii, 707 (February and D'Iareh, 1875).
—" It was either the ﬁrst or the second load: I brought there, I am
not certain which, that I had to go into his room or shop where he
has his instruments to work to ﬁnd him; he showed me a thing
there; says he, ‘I am working at a talking machine here, and if I can
gtt it accomplished, or had the means to get it accomplished, I would
he a rich man.’ ” "He told me ‘ it he could get this accomplished, get
it patented, he would be one of the richest men ’; I think that is as
near as I can explain it.” " He said that he was a poor man, that he
had not the means; that he had so much sickness in his family that
keeps him poor.” "He showed me some talking machines. I guess
he would have showed me more, but I was in a hurry with the haul-
ing. He was employed to help me in unloading, and I urged him on
the best way I could.” “Most of the time he was in his room, at his
talking machine, Working ; sometimes he was in the shop, where the
lathes were to be put in, ridding out that” (ans. 7—11). When I
was at the shop he was at work on his talking machines " most of the
time.” “Sometimes he would Work on the talking machine, and
other times he would work on the ﬂoor, where we put the lathes
down” (x—ans. 30, 31).

No. 109. Joseph C'. Jeferies, del'ts, ii, 710. —During all my
visits to his shop, from November, 1876, to October or November,
1879, Drawhaugh "was doing other work, but at the same time he
was still working on this [talking machine]. During the time of my
visits he was manufacturing those clocks to a great extent; he
would suddenly drop What he had in his hand and go to this appa-
ratus or different parts of this talking machine and he would do
something, ——what it wasI am not prepared to say, ——and then he
Would try and test; that he has done frequently while I was in the
shop; it he had a piece of clockwork in his hand he Would slam it
down fairly enough. as I thought, to injure it ; then he would go to
some part of this talking machine and do something that I can’t ex-
plain, but I thought he was testing it; sometimes he would remain at
it half an hour and sometimes longer (ans. 20).” [Too melodra-
motion]

“ My knowledge is that he was working at it pretty nearly all his
spa re time, and his only drawback was the want of capital to carry
it through; he was a poor man and had hard times getting along,
and he had to work enough to keep his family going, as we all do;
a laboring man or a mechanic has very little time to throw away, es-
pecially when he has a large family to support” (ans. 32).

From the other experimental work he testiﬁed to on cross-exam-
ination we know this is untrue. From the fact that witnesses testify

34:0 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

so glibly to this and do not know of his other Work, we are sure
that their " memories ” are artiﬁcial.

It is worth noticing that he pretended to have invented

The Gitfard injector (Balsley, defts, i, 202, ans. 15, 204, ans.
34—5; Weaver, complts, i, 382).

The autograph telegraph (Drawbaugh, defts, ii, 989—»90, X-ans.
1072-3).

The magneto dial telegraph (Drawbaugh, i6., 990, x-ans. 1074).

The magneto key (Drawbangh, ib., 970, x—ans. 1075).

The automatic ﬁre alarm (Drawbaugh, ib., 973, x-ztns. 1004; p.
1067, x-ans. 1486). '

The electric clock (Drawbaugh, defts, ii, 967, x-ans. 979, 980;
Worley, cotnplts, ii, 1554, ans. 23—4; Shapley, complts, i, 588,
ans. 10).

Earth batteries for the same (Drawbaugh, defts, ii, 968, x-ans.
987—8). '

The telephone. Under the latter he asserts that he invented—-

The magneto receiver.

The magneto transmitter.

The powder transmitter.

The hard carbon transmitter, or microphone.

The use of the induction coil in connection with variable-resist—
ance telephones.

And nearly all the modern improvements of detail, consisting of

The metal diaphragm.

The short coil and soft iron core mounted on a permanent magnet.

The peculiar mouthpiece and thin air space behind it found in all
the modern commercial instruments.

The dampening spring on the diaphragm.

The lever and spring mounting and adjustment for the carbons
found in the Blake transmitter and in Drawbaugh’s exhibit H.

Even the organization of the box of the Blake transmitter, —— the

working parts carried on a cast—iron frame screwed to the inside of
the door of a box within which the induction coil is placed. Every
feature of the Blake transmitter visible upon inspection is found in
Drawbaugh’s H. But here the likeness stops. In both, the carbon
was carried in a brass cup. But the most valuable feature of the

DRAWBAUGH A CHARLATAN AND A COPYIST. 341

Blake is that this cup is designedlg/ weighted. This feature, neces-
sary and used in all subsequent instruments of the class, is not visi-
ble upon inspection, and is notfovmd in any of mebaugh’s instru—
ments. Its absence is the reason Why H is unworthy for general
use. Mr. Benjamin, defendants’ expert, testiﬁes (defts, ii, 1262,
ans. 57) :—

" Prof. Cross describes this Blake instrument as follows: "A car-
bon transmitter, in which the contact is made between a metallic
electrode carried on a spring and kept in contact with the diaphragm,
so as to be vibrated by it, and a weighted carbon electrode carried on
the end of’a stiff spring provided with an adjusting screw.’ Take
the word “weighted ’ out of that quotation, and it correctly describes
the carbon—holding arrangement in Drawl'iaugh’s instrument H, both
contrivances operating in substantially the same way to produce a
like result. Reference to complainants’ drawing of exhibit Blake
transmitter, in complainants” moving papers for a preliminary in-
junction, will show the similarity between the form of the Blake
transmitter and Drawbangh’s instrument H, even to the apparatus
arranged on the door or cover of the box, and the presence of the
induction coil. Substantially the same arrangements appear in the
Klemm carbon transmitter, one of the alleged infringing devices in
this suit.”

And yet Drawbaugh cannot tell how he reached this great inven-
tion.

The defendants caused their patent solicitor, Mr. Benjamin, to
testify as expert (defts, ii, 1270, ans. 64) :——-

"I think I can safely state that there is no parallel instance in the
whole history of invention, at least so far as I know it, of any one

havinrr accom )lished a more brilliant and ext 'aordinar series of
v . O . .
original discoverles.”

He does not overstate it, if the story be true.

Drawbaugh swears to the originality of all these devices which we
have placed before the telephone in the references cited as strongly as
he does to originality in the telephone. Now we know, and have
proved without contradiction (F. L. Pope, complts, ii, 1381—5), that
every one of these was old and well known long before Draw-
baugh touched them. The dilierences between his and the old were
merely in details, and they were not practical improvements.

The impression he made as far back as 1869, on an intelligent

342 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

friend, who has acted as his patent solicitor, is thus stated by Mr.
Weaver (complts, i, 382, ans. 58) :——

“I also had a conversation with J. 'W. Moﬂitt about that time, in
which he represented that Daniel Drawbaugh was the original in-
ventor of what is known as the Gitfard Injector for steam engines. I
am impressed that in that interview in 1869, I asked Mr. Drawbaugh
personally whether he had any hand in the invention spoken of. He
left me under the impression that he had invented the same thing, in
substance, before Gitfard did. This opened my mind to study Mr.
Drawbaugh carefully, either as an inventor of greater claim than I
supposed he was, or that he was in the habiL OftaZ/cing in a visionary
manner; that is, imagining that he was an inventor, when, perhaps,
he was not really that character .”

In 1879 David Hauck, when on the witness stand, addressed to
him the same taunt, and Drawbaugh and his brother Henry enumerated
the best inventions they knew of to answer it,—some completed
and some not, —but there was no telephone there. In 1874—5 he
proclaimed himself an inventor, and enumerated his title-deeds to
glory, —-there was no telephone there. Is there any answer to this,
or any escape from it? In cross-examination that deposition was
put into Drawbaugh’s hands, and he said he could not change it.
Now comes Mr. Benjamin, and as professional expert on character
swears that in his opinion Drawbaugh’s telephone story, if‘true, puts
him in the front rank. It does, if true. It did then, if true (see
this, p. 225, supra).

His character for picking up what is already known is Well stated
in an article about him in the Independent Journal of Mechanicsburg,
April 17, 1878 (complts, iv, e98) :—

“ There is nothing engages the attention of the scientiﬁc world that
does not also interest Drawbaugn.”

But the statement in the same article of what he has produced
himself brings the bathos : —

” Among some of his best productions are nail machines, faucets
and electric clocks.” '

His native modesty and retiring disposition are proved by the
biography which he himseb’furnished to the "History of Cumberland
County,” published in 1879 (complts, i, 705) :—

"One of the greatest inventive geniuses of this age (so proliﬁc of
great men) is the subject of this sketch, Daniel Drawbaugh.”

$10,000 OF CASH IN TEN YEARS. 343

" Dan1cl Dr.1wb.111gh, an inventive genius of whom ou1 count1y
may feel justly pwud, resides at his obirthplace, Milltown, three
miles southwest ot H211 risburg.”

DRAWBAUGH’S FINANCES AND FINANCIAL RESOURCES. ——The Whole
of his receipts cannot be ascertained by us. He did a good deal of
jobbing work, and we cannot tell its extent or the revenue from it.
He does not, and professes that he cannot, furnish much information
about this. But the following receipts and resources do appear : —

His speciﬁc cash receipts,—th11t is, the actual cash which came
into his hands,— as speciﬁcally admitted by him, include the follow-
ing :—

1867. From sale of faucet patents, etc. (ii, pp. 871—5) . $2,915 00

1868. From sale of faucet patents, etc. (ii, pp. 871—5) . 2,022 00

Borrowed of D. Ditlow (ii, p. 879) . . . 500 00

1869. Faucet (ii, pp. 871— 5) . . . . 1,200 00
Rent collected from real estate owned by him (ii,

p. 888) . . . . . . . . 80 00

Proceeds Gardner note, discounted . . . 1,000 00

1870. Rent collected. . . . . . . 110 00

1871. Rent collected. . . 110 00
SundIy receipts f1 om Faucet Company, 1867— 71

(i, p. 683) . . . . . . . 136 85

1872. Rent collected (ii, p. 888) . . . . 110 00
1873. Rent collected (ii, p. 888) . . . . 110 00
Drawhaugh Manuﬁwturing Company—his net
share proceeds sale to cheks———July (i, p.
684) . . . . . . . . 425 00
1874. Rent collected . . . . . . . 110 00
1875. Rent collected . . . . . . . 110 00

Received on account of sale of house . . 50 00
Received from Axle Company, for wages (i, p

647) . . . . . . . . 310 22

1876. Rent collected. . . . . . 110 00

Axle (Jomp my, for wages (1,1).647). . . 143 84

Cash proceeds of sale of house, Ap1il . . 1,150 00

In nine years . . . ' . . $10,712 91

344 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

This was merely the cash which came into his hands from speciﬁc
property sold or rented, from one loan of $400, and about one year’s
wages. In addition to this was all he earned for about ﬁve years’
work as a jobbing machinist.

He owned his house, and had to pay interest only on an incum— _

brance of about $300 for part of the time; it was worth $2,300. It
was a double house, and the rent was for the half he did not occupy.

He had the use of a power—driven machine shop rent free.

The defendants do not and cannot deny these receipts. We knew
of them, and they knew that we knew of most of them; so they
devoted thirty-ﬁve pages of his deposition—two days and a half
—- to the attempt to prove what he (lid with all this money. If they
had succeeded they would only have proved that with this amount
of actual cash he preferred to spend it on something other than ob-
taining a patent for a telephone. But it is folly to pretend that, with
these receipts, there can be any truth in the allegation of the answer
that he
"for 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 un-

able to patent his said invention, or caveat it, or manufacture and in-
troduce it upon the market.”

False account of expenditures furnished to the Court—An exami-
nation of his statements as to the disposal of his money shows how
little the Court can rely on his story, even when he professes to
fortify it with papers, and discloses falsities enough to pay for a
patent a dozen times over. The cost would have been small.

He has testiﬁed in the faucet interference (complts, ii, 142) : —-

" What is the actual cost of procuring an ordinary patent, includ-
ing attorney fees?

“A. I have paid as high as $65 or $70.”

He held himself out, and advertised himself in print, as a solicitor
of patents. , (Seep. 196, supra.) He could at least have dtawn a
avcat. His friend, Theophilus Weaver, solicitor of patents at Har-
risburg, usually charged $20 in addition to the government fee of $55
(Weaver, complts, i, 401, ans. 103, 104).

Shank, who was the defendants’ ﬁrst witness, and has ever since

fab . a... ‘ .mtﬁmrhwmz 'x'“ .

ALWAYS OWNED ONE OR TWO HOUSES. 345

been employed by them as a runner, testified that in 1869 Draw-
baugh was very backward with his taxes (defts, i, 22, ans. 5).
These were of course the taxes for 1868 on the house he bought in
1868,— unless he admits the ownership of other property. In 1868
be received over $2,000 cash from the sale of his faucet patent.
In 1869 he received $1,200 from the same source, and $80 rent
from the second tenement in his double house rented to Fettrow,
besides $1,000 on the Gardner note. He felt able to give and did
give to his father this $1,000 towards buying a farm (defts, ii, 868,
ans. 439). Afterwards he gave his father about $400 more in the
way of assistance (2'6. 878, ans. 493). He was not poor then. If
he was backward with his taxes, it was because it was his habit
not to pay anybody until pushed to it. He seems always to have
done so. A number of judgments were obtained against him, but
his property was never taken on execution. When his unusual
powers of coaxing,r a creditor were exhausted, he always found the
money. When Shank testiﬁed he said that he still held against
Drawbaugh an execution for $2.50; yet within the year Drawbangh
had received from these defendants $5,000 in cash and an unknown
amount of stock.

In the spring of 1868 he acquired real estate at Eberly’s Mills.
The price was $2,310. He paid $2,010 in cash (2'1). 876, ans. 482—4),
and the remaining $300 was the amount ofan oldjudgment lien (used
in Pennsylvania instead ofa mortgage) on the property. He then
spent, "he supposes,” between $300 and $400 in repairs (i6. 883, ans.
521—2). In point of fact he did not; there is no proof of the total
cost, but the lumber was paid for in machine—shop work, — repairs
on the planing mill (defts, ii, 1022). The mortgage was paid oﬂ', he
thinks, in July, 1873 (1'6. 884, ans.,525—9).

This property consisted of a double house and blacksmith shop.
Drawbaugh lived in the one part and rented the other to a regular
paying tenant, — D. Fettrow, —who paid $80 rent the ﬁrst year
and afterwards $110 (Fetlrow, defts, i, 369, ans. 62).

April 1, 1876, Fettrow bought the property for $2,200, paid
$1,200 cash, and has not paid the remainder because of a judgment
lien for $1,000, created in 1872, for money actually borrowed and
received by Drawbaugh on the Gardner note, which he indorsed and

346 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

got discounted(Drawbaughﬂefts, ii,888,ans. 548, ans. 557—9, p. 890;
Fettrow. defts, i, 371 ; judgment- record, det'ts, exhibits, pp. 38—50).
There appears to be a perfectly good answer to this claim, in the
fact that money of Gardner was attached to pay the note in the hands
of a garnishee, and lost to all the debtors by the culpable failure of
the note holder to collect it, or allow others to, and the subsequent
insolvency of the garnishee (see the judgment record, if). p. 47).

When Drawbaugh sold this house in the spring of 1876, he bought
another in the town of Meehaniesburg, from Eli W. Wise, paying
$1,000 cash and about $740 in three notes of about $250 each, to run
one, We and three years, secured by judgment liens on the house,
and had no trouble in meeting the payments on it with substantial
promptness. At the end of one year $200 was paid on the ﬁrst
note; at the end of the second the balance of the ﬁrst and about the
Whole of the second were paid, and about the end of the third the
triﬂe remaining on the second note and the whole of the third were
paid by money borrowed from the defendant Chellis on mortgage
(Drawbaugh, defls, ii, 891; ans. 566-570; 61). 898, ans. 606—7).
Drawbaugh was made to testify, and undoubtedly believed that he
gave a mortgage to Chcllis and that the judgment lien Was dis—
charged. The fact is, however, that Chellis took the mortgage and
also took an assignment of the judgment lien, and holds both (see
judgment record, defts, exhibits, pp. 58, 59). This is one of the
ways in which the man Chellis contrived to get Drawbaugh into his
power.

Thus through the whole period in question he owned real estate

Worth much more than the encumbrances. In August, 1869, he and
his brother Henry Were accepted as securities for $1,500. In 1871 he
obtained stay of execution in two suits, upon the ground that he

owned freehold real estate whieh‘was a sufﬁcient security (dofts, ex—
hibits, pp. 53—4). Sept. 21, 1878, he obtained a stay of execution,
entered on the docket as follows (det’ts, exhibit, 1).,70) :—

" Sept. 21, ’78, parties appear. Judgment in favor of plainliﬂ'
and against defendant for $55., 0 and co>ts 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).

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

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 111r1n<re them so that out of several he could 1i11g one
or the other, at plez1su1e,iu o1der to use them for hotels and the
like.

Shettle, one of defendants’ most conspicuous witnesses (defts, i,
218), swe1rs in tel 111s that he saw the instrument [-1 at D111wl1augh’ 3
shop 111 1876 or 1877; that he reedgnizes it by the hell; that Draw-
bnugh, however, did not talk thmugh it; did not tellizim it was a
talking mac/11116, but told Mm that it was to be used f07 calling at

DEFENDANTS’ PROOFS. —PERVADING WEAKNESSES. 381

hotels, and all he dad will; it in showing it to the wimesses was to
ring the bell.

There are other instances. Perhaps among the strongest are those
of one particular kind which run through many witnesses, and are
found in the quotations on p. 80, supra. The chief talk that most
of them heard from him, according to their story, is that the thing
he was working on, and which they now say was a talking machine,
was intended to supersede the telegraph. We know in fact that he
had two things which he expected would supersede the telegraph, or
talked as if he thought they would. One was the magneto key, which,
he believed, was to dispense with batteries entirely, and he advertised
it as such. Another was the dial telegraph, by which an unskilled
man could operate without requiring to learn the Morse alphabet.

Plainly, the testimony of ignorant unthinking men, who now pro-
fess to believe that, while he was making all these things, they saw
him, in all those years, work on nothing but talking machines; who
now profess to ﬁnd nothing but talking machines in their recollec-
tions; who admit that they then considered them a triﬂing matter,
not worthy of attention —are witnesses who are not ﬁt to be relied
upon in the sin'plest case for the simplest matter even if there were
no proof against them. They are perfectly incapable in such a case
as this under such circumstances, with memories stimulated, if not
created, by local gossip and local feeling, to stand against the weight
of all the history and the conduct, and the positively proved printed
and written statements of this claimant and of all those who came in
contact with him.

A full abstract of each deposition with full quotations of the more
important parts is given in the appendix.

1867.

No. 200. Samuel Snell, defts, iii, snrbtl, 413; appendix, p.
654. —Says that in the ﬁrst half of 1867 he listened and “ heard
the words pretty distinctly,” when listening at a machine which he
thinks was like B, the line being run from the mill oﬂice to Draw-
bangh’s workshop, a distance of between forty and sixty feet. He
says that he has never been at the shop since, though he has always
lived Within three miles of it.

382 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

1868.

No witnesses pretend to have heard in this year.

1869.
N0. 1. A. B. Shank, defts, i, 21; app. 17.-—Nearly every-
thing that is material was get from this witness by speciﬁc leading

questions. He says that in I869 he heard and understood what was
said through F (tumbler) and B (tin can), and recognized Draw-
baugh’s voice. Drawbaugh then said nothing about patenting.

Hid no conversation with D1awbangh at that time about the in-
vention , saw no battelies and did not understand whether it operated
by elect11c1ty Next saw an instrument, two, three or four years after
that, it was A; when he saw it, D1awbaugh, f01 the {ﬁst time, said he
Would like to patent, but was too poor. First swore that Draw-
baugh talked into A and that he listened at anothei instiument of
different shape; 011 the next day sw01e that he listened at A, and
does not know what was talked into; understood what was said. By
leading questions he was induced to say that he saw A about the
time the Axle Company began, which was early in 1875. Since
1875' has been in the shop six or seven times a year or oftener, but
never saw any talking machines ans. 121, p. 35). Saw 0 and I,
1870—4. 0 was in about the same condition then as now; it is 110w
merely a wreck. Never attempted to talk except on the two occasions
named.

Up to 1870 he was at Drawbaugh’s shop much, then moved to a
house two miles from the shop, and has visited it six times a year or
oftener since. He has long been town constable and tax collector,
and these visits wele chieﬂy when collecting taxes. He has no means
of ﬁxing any date except irom the alleged association that he saw F
and B befme he moved. Has been at the shop eve1y two months
for a dozen years and nevex saw talking machines them but twice.
He has been in the defendants’ employment throughout this case
assisting in the preparation. He has not only summoned witnesses
as constable, but many witnesses testify that he was the ﬁrst person
who interviewed them ; he has stayed with them in the ofﬁce of de-
fendants’ counsel, and during our rejoinder came to Philadelphia to

THOSE WHO SAY THEY HEARD IN 1869. 383

assist the defence. He is a country constable, with the intelligence
and cunning of a Dogberry. His deposition purports to state that
he understood perfectly all that was said through F and B, and
through some unknown transmitter and A. He did not do this, be-
cause the Court now knows that nothing of the kind can be done.

Shank asserts that his particular business at Drawbaugh’s shop
was to collect taxes. He has been town tax collector for ﬁfteen
years. He alleges that in 1868 and 1869 Drawbaugh was very
backward with his taxes; and that is put in as a proof of poverty.
The fact is, that in 1868 he received $2,000 from his faucet patent;
and in 1869, between $1,000 and $2,000 more. The story that he
was unable to pay taxes, when his total taxable property was what
remained out of the receipts of this and the preceding year, is sim-
ply absurd, and does not help Shank’s character as a witness.

Shank testiﬁed on the stand upon direct examination in April,
1881, that Drawbaugh still owed him $2.54 on an execution, which
he held for collection, and which had been running two years. Eight
months before he testified to this Drawbaugh had received from the
defendants in this case $5,000 in cash, and an amount of stock so
large that he declined to say how much it was. To put it plainly, his
failure to pay his debts is not from lack of money. He probably
prefers to spend it on something else, but plainly that other thing is

not the telephone.

No. 3. J. J. Zacharias, defts, i, 49; app. 1). 22.——He really
does not give any date before 1874. The defendants had him
swear to an association of events which Would give July, 1869, as
the date; but the subsequent proof by us of the true date of one of
the facts, out of a book produced by the defendants, shows that
the alleged association is impossible, and leaves him all at sea.
Other matters he mentions would make it 1874. Has been at
Drawbangh’s shop since, especially in 1876. Says that he used F
and B, understood what was said, and recognized Drawbangh’s voice ;
it sounded the same as Drawbangh’s voice in his presence, only not
so harsh. The Court knows that he did not understand what was
said. His cross-exainination shows his memory to he worthless,
even about recent events connected with this case. He never tried
to talk through a talking machine again.

384 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

No. 15. George Fl'eese, defts, i, 129; app. 42. — Village tailor;
he gave a ludicrous deposition, in which he says that Drawhaugh, at a
date which is supposed to be stated as in December, 1869, talked
through B and F to him (p. 140) :—

“ Q. 11. Did you put your ear to the machine and hear what he
said through it? .

“A. Not close tot/16 mac/tine; just on the outside of the machine

merely; I heard what he said through it distinctly, as though he
was alongside of me when he spoke that at the other enc .”

Witness says that Drawbaugh in speaking of it sait, “ My fortune

lies in this, but I am most too poor.”

The Court knows that such results from B and F (or even from a
real telephone) are far beyond the limits of physical possibility.

He has never seen a talking machine since.

No. 23. J. Scheme/1, defts, i, 184; app. 54. — Says that he
heard through F and B (ans. 7). “ He talked down there and I
listened up above, and I heard what he sait ”; and the witness says
he could distinguish Drawbaugh’s voice. Thinks this was about four
years before he moved from one house to another, which was in
1873 ; that would make it 1869. Drawbaugh said it would take the
place of the telegraph. Says that, at a time which he attempts to ﬁx
only by the assertion that it was while he lived in the second house
(1873—5), he saw B, F and others; thinks this was in the fall of 1874,
and that he heard through A what was said at the other end. Draw—
baugh talked into a kind of box, which he said was an improvement
on F, and which witness thinks looks like I.

This cannot be done. C and I together are better than I and A,
and they can at best only transmit an occasional word or part of a
phrase. Drawbaugh’s testimony is, that A was used with F and not
With I, p. 158, supra. ,

Says that he has never tried one since.

His attempts to ﬁx dates by mere arbitrary associations are of
course ridiculous.

No. 20. Samuel 1Vz'clzols, defts, i, 239; app. 69. — Called himself
a " civil engineer”; in fact runs a stationary engine, at $33 a month.
At a time which he says Was in the second summer after he moved

THOSE WHO SAY THEY HEARD IN 1869. 385

to Whitehill, aplace one mile from Drawbaugh’s shop, which he
moved to in 1868, and where he has lived ever since, he ant “ my son—
in-law, Samuel Bruce,” went to Drawbaugh’s on purpose to see his
machinery. Saw F and B, and through them he and his sou—in-law
each “ heard and understood what he saic,” " all that he spoke,”
" very distinctly.” They talked from one room through an inter-
vening space and two partitions.

On cross—examination this dwindled to the statement that each of
them heard two words only. As this was an exhibition, it is certain
that this was the best the instruments would do. He never saw any
instruments except that once.

“re proved conclusively that this visit, sworn to have been in
1870, was not before midsummer of 1876. Bruce did not become
his son-in-law until June, 1876. Bruce’s ﬁrst wife (lied in 1875. He
began to court Nichols’s daughter in 1876, married her, against her
father’s wish, in June, 1876, and had not visited her family before that
year. The partitions and rooms described did not exist until 1875.
Nichols says that he heard George Free talking of it before his visit,
and George Free (defendants’ witness) does not pretend to any
knowledge of it before 1875. Niehols’s son, Edward, worked in
Drawbaugh’s shop two months in 1874, and knows nothing of it.

What is the effect- on the defence of the fact that when one of their
witnesses went there in 1876 or 1877 the best apparatus to show was
F and B,—tumbler and tin can,—-and the best results attainable
were the transmission of two words? How much of their lead will

he carry?

N0. 45. Isaac B. Millard, defts, i, 340, app. 90. —Farmer;
has made numerous visits to Drawbaugh’s shop at vaguely stated
intervals. Says that while living at Ezra Gilbert’s, at Milltown,
1867—9, he heard and understood talk through B. The man speak-
ing was out doors on a bench ﬁfty yards otf. \Vas not there again
until about the time he moved on to a certain farm, which was in
August, 1874; says that he was then more frequently at the shop,
and then apparently, though his statement is not quite speciﬁc, saw
A, D, E (ans. 31, p. 341) ; it is not alleged that D and E existed
before 18 75 ; the defendants then got him to become doubtful about
the date of D and E, asserting merely that it was in cold weather

386 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

and before the opening of the Centennial; says that he understood
through A, and could carry on conversation through D and E. Says
that he was not there again until 1880.

Drawbaugh has described all the circuits 011 which he used F and
B, but nothing which answers to a line fifty yards long running to a
bank. Such a line is described as existing in 1877—8, or 1879, but
never before. The witness also picked out, as seen in 1874—5, in-
struments which are not alleged to have existed until several years
later.

Says that he has never tried one since until 1880.

Ezra Gilbert, above referred to, who has lived in the village since
1865, knows nothing about telephones. The defendants called him
to prove when a certain man worked for him, and did not ask him
about telephones.

1870.

Drawbaugh’s testimony, aided by the date of Sadler’s wagon, which
the defendants had George Drawbaugh sWear to (entirely contrary
to the fact), is that C was ﬁnished before March, 1870, and l at or
about that time; that before that whole sentences and advertisements
were t“ansmitted through F and B, and understood when Draw-
baugh handled the transmitter and a countryman listened, and
when the transmitter F was left in the hands of a countryman and
Drawbaugh listened. The passage is quoted on p. 160, supra.
Absolutely false; but it is what they ask the Court to believe.
Their own witnesses disprove it.

No. 87. H. If. mebaugh, defts, i, 573; app. 170.—

Nephew of the claimant; has lived most of his life in the village,

and worked several years in Drawbaugh’s shop; is one of the four
or ﬁve persons who are alleged to have aided in experimenting.
Then comes this remarkable statement (1). 575) : —

"(9.11. Did he talk to you, or did you talk through those
machines, F and B, at that time, early in 1870?

" A. No, sir; not in words, not at that time; he used to get me
to make sounds, at that time——-s0unds that he thought had more
force or more vibration, to move the instrument clearly; I remember
very distinctly of playing the violin in it. ‘

THOSE ‘VHO SAY THEY HEARD IN 1870. 387

“ Q. 12. How soon after that did he talk to you through the
instrument, if at all?

" A. A very short time afterwards; there were some words that
we could understand only.

“ Q. 13. Give your best idea of the time.

" A. It was not more than ten days, or two weeks; it just hap—
pened while he was experimenting with that machine; I remember
that very well. '

" Q. 14. When did you go to lVaynesboro, l’a., to work?

"A. In the spring of 1872.

“ Q. 15. Prior to your going to \Vayneshoro to work. did you
talk much, or hear him talk much through the instruments?

“ A. Yes, sir; [ was a bout the shop then a great deal.

” Q. 16. Were the instruments in such condition prior to your
going to said ‘Vaynesboro that you could hear and understand all
that was said through them, or not?

" A. Just for a little while at a time; they appeared to require a
great deal of adjusting and Working at, —— merely trials that he got
me to help him.”

No witness can know more than this man. His knowledge limits
their story. Up to 1870 they did not really attempt to transmit
Words, but only sounds which had more force; and then it “just hap—
pened, while experimenting,” that“some words only ” came through ;
up to 1872 all they could get was a few occasional words, just for a
little while, by dint of a great deal of adjusting and working at; and
there was no use of it except " merely trials.”

Here is an end of all pretence that perfectly intelligible speech
and the reading of newspaper advertisements were transmitted be-
fore this; and here is an end of all witnesses who precede those
dates with stories of speech, or their testimony destroys his.

He never saw I; has the vaguest notion of when he saw 0, but
never used it. Never used or witnessed any use of A. Says that
he made, or mostly made, D and E,under his uncle’s directions, in 1875,
and talked with them ; but his testimony about the magnets made for
them proves that they were not made before April, 1576, and the
defendants’ witness Holsinger ﬂatly contradicts him about the making
of D and E.

Those parts of his deposition which refer to Drawbangh’s exclu-
sive devotion to the talking machine in 1874, 1875, 1876 are seen
to be ludicrously false when read alongside of the description Draw-

388 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

bangh gave on cross-examination of the many other things he did in
those years (v.1). 321, supra).

No. 60. H. Geislwez't, defts, i, 477; app. 127. —Laborer. In
a. deposition somewhat shaken by his errors in date upon other mat-
ters, he says that he went to Drawbaugh’s shop in July, 1870; saw
F and B, and (p. 479) :———

" Q 18. Do you mean to say that you heard plain and distinct

through the instrument?
" A. Oh, yes; no doubt about that.”

Says that there were no attachments to B that are not there now

except the wire, and that he can’t see (my cliffhreace in the condition

of F. Both are now more wrecks.

Was back and forward in the shop several times down to and in—
cluding 1876, but never tried to talk again.

He was so stupid that nearly all his testimony had to be obtained
by speciﬁc leading questions. The Court knows that he did not do
with F and B what he asserts.

No. 300. Abra/2am May, defts, iii, surbtl, 1032; app. 684.
—-—Carpenter. Says that he was at Drawbangh’s shop in August,
1870, and in answer to leading questions says that he heard and un-
derstood through the machine the words that were spoken, but he
does malpreteml to imlentzﬂ/ any machine. That could not be done
with any apparatus alleged to have then existed. Has been at
Drawbaugh’s shop repeatedly since then, but does not suggest that
he ever tried to use a talking machine but once.

He is one of the witnesses produced at the very end of the ease,
and who would have been called in chief if his story had been true.

187].

Before beginning to consider 1871, it is well to remember that,
according to Drawbaugh’s story, C and I were made by him in 1869,
or at the latest, 1870; that they were much better instruments than
F and B, and much more convenient to use. This is the fact about
them; but, nevertheless, F and B are sworn to as the only instruments
exhibited to talk through for a long time after that. B especially is

murmuum

THOSE WHO SAY THEY HEARD IN 1871. 389

so strikingly rude and inconvenient a receiver that it is not to be
believed that a good workman like Drawhaugh would have used it
a week. It is certain that he would not have used it after he had C
or I; and he testiﬁes in terms that he did not. This is a trouble
with the defendants’ testimony which has not been and cannot be
explained. It destroys the testimony. (For this, seep. 151, supra.)

No. 67. E, B. IIoﬁman, defts, i, 502, 639; app. 137. — Worked
in Drawbaugh’s shop two months in 1868; was there afterwards a
number of times, and testiﬁed that he ﬁrst heard Drawhaugh talk
through the talking machine in the fall of 1871 (p. 504) :—~

" Q. 20. Did you understand what he said through the machine?

"A. Yes, sir; he asked me through it what I thought of" the ma-
chine. I was down stairs at the time, and he spoke through it.”

But the witness does not identify any machine nor pretend to. He
had already stated that he had seen F there some years before.
He has been there often since, down to the summer of 1877 at least.
He thinks he talked through one in October, 1874, and that is all ;
he has no means of ﬁxing at which Visit either of these talks was.

His enormous capacity for exaggeration and his inability to report
truly what he saw are proved by the bridge matter, while the two
witnesses called at the eleventh hour to support him, McLaughlin,
father and son, swear that he did and saw so much more than he
himself says he did and saw as to destroy their own credibility.
Hoffman says of this Visit (defts, i, 503) : —

“ Q. 12. State whether you saw any talking machines at that
shop at that time.

" A. I (lid; at least he told me they were talking machines; I
did not examine them.”

In ans. 19, 20, 21, he says that he ﬁrst talked in 1871, and next
in October, 1874; i. 6., not in 1873.

McLaughlin, the father, says that in 1873 Hoffman examined it,
talked through it, and referred to it in terms which implied that it
was an entire novelty. But they were only called in surrebnttal,
two years later, when all memories had grown ; the son, twenty-four
years old, could not write his name; and they are absolutely dis-
credited by their testimony about the bridges. Hotfman does not

390 E. B . HOFFMAN.

hint that any one was present in 1873. See, for them, appendix,
pp. 134, 137, 668.

The bridge matter is as follows. Hoffman testiﬁed (defts, i,
503) 2——

" 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 0n the Yellowbrceches 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 on the creek at
the time. It washed away the foot bridge at the mill known as Dit—
lcr’s Mill, at that time, and also the red bridge up at Heck’s.”

He says that during that freshet he was fishing on the creek, and
went to Drawbaugh’s and saw a talking machine. If the witness is
as far from the truth about the talking machine as he is about the
bridges, he is worse than worthless.

There exists in Cumberland County a bridge well known as the
red bridge at Heck’s; it is not on the Yellowbreeches, but on
the Conodeguinet, six or seven miles away, and was not washed
away in 1873, but was carried away in 1881 by the ice. On the
Yellowbreechcs, the ﬁrst bridge above Drawbaugh’s shop, a mile or
two distant, is "Hake’s” bridge, a name which is locally frequently
pronounced the same as Heck, and the names might very likely have
been mistaken. That bridge, however, is not red, never has been,
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 0f1873 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 neighboringdfarmer a day or two after the ﬂood
subsided, and the old gangway 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 efforts of the complainants upon
the subject, and the very voluminous evidence afterwards introduced
by the defendants upon the question of the freshet of1873, and by the
complainants’ evidence in rejoinder. They were particularly proved
by the explicit testimony 011 cross-examination of the farmer and of

THOSE WHO SAY THEY HEARD IN 1871. 391

the bridge carpenter, called by the defendants, and by the bridge su-
pervisor and his books, called and put in evidence by us. See defts,
iii, surbtl, pp. 450, 453, 460, 967; complts, iii, 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 Hoti'man’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.

Hoffman is the only witness called by the defendants in chief and
connected with the Faucet Company who pretends to having heard of
the existence of a talking machine during the time of the faucet
company; he makes the case worse for the defence than if they had
let him alone. Such an exception proves the rule. (For this v.
pp. 244—254, supra.)

N0. 91. George W. Drawbaug/t, defts, i, 624; app. 197. —
Nephew of the claimant and brother of H. K. Drawbaugh; lived all
his life in the village, and has worked in the shop. Speaking of the
time when he was repairing a certain wagon, which he states to be
about March or April, 1870, but which is proved to be a year later,
he says that he and his uncle tried to talk through, and he could hear
something through F and B, but that when he and his uncle changed
places his uncle could not hear anything. He does not pretend that
he ever had any better result from any telephonic at his uncle’s shop.
An examination of his deposition shows it to be so full of falsities
and absurdities on material points as to be entirely unreliable. He
says that he never tried D or E or A, and does not intimate that
he ever tried any talking machine at any other time except by the
general statement that he ﬁrst saw 0 in 1874 " to the best of his rec—
ollection,” and used it and saw it used by unnamed persons at a date
not named, unless he refers to 1874, and with results not stated. No
witness alleges that he used it in 1874, unless it he Draper, and no
one pretends to have used it in George Drawbaugh’s presence.

He says that what he learned while at work on the wagon was his
ﬁrst knowledge of a talking machine; he does not pretend that he
ever heard it before. This was in 1871. «He was the claimant’s

.. 3.51....
:31 N...“

392 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

nephew, and lived next door to him. What becomes of the story
that Drawbaugh had then had practical instruments for four years,
and that they and their success were common talk all over the

country ?

He attempts to ﬁx the date of the wagon by swearing that he
bought the lumber for it from John F. Lee, and Lee’s books (pro-
duced) show that Lee’s last sale to him of any kind of lumber was
in May, 1870. This appears to be a better means of ﬁxing the date
than they usually have; yet it is entirely false. The wagon was
made for the ﬁrm of Drawbangh &' Sadler (Daniel Drawbaugh and
Jacob M. Sadler), partners in the hydraulic-ram business for one
year only. The defendants have printed an afﬁdavit of Sadler which
states that the partnership was in 1871. We have a bill for a ram
from "Drawbangh & Sadler,” dated in 1871, and showing that the
ram was furnished in 1871. Daniel Drawbaugh related an incident,
in which he said that Norman Kahney was present during the work
on the wagon. Kahney did not move into that part of the country
until 1871. The difference of dates becomes important in connec-
tion with Joseph Ditlow (q. v. p. 375, infra), but is especially
instructive in showing the worthlessness of even an apparently
probable association where the link rests merely on memory. This is
spread out in the appendix, p. 198, and in defts, ii, 1013; complts,
ii, 1050, 1054, 1520; defts, iii, surbtl, 212.

Jesse Eic/zoltz mentions both 1871 and 1873; the defendants
called him for 1873, and we will consider him under that year.

1872.

No. 27. Ira D. Kalmey, defts, i, 210; app. GOAL—Laborer;
lived in the village 1871—5, and then a mile and a half away. During
1871—80 was at Drawbaugh’s shop ” sometimes every day, sometimes
every week, and sometimes every month, just as it would suit to get
there”; during every year since 1873 has seen talking machines
there,——old ones and new ones together. Says that in 1872 he
heard and understood distinctly through F and B. In 1873 or 1874
heard and understood through A. " May have seen D and E, but
paid no attention to them at all”; “ don’t remember much about
them at all.” Saw D and E a couple of years after A. “ May have

THOSE WHO SAY THEY HEARD IN 1872. 893

seen all the machines (a number being shown him), but of course I
couldn’t give the times when I seen any of them.” “ Drawbaugh was
poor, said he was too poor to get it patented. He worked on talk-
ing machines at night; I saw him at it so often that I hardly knew
how often. From 1872 to 1880 he was working principally on it;
don’t know of his working on anything else except a molasses fan-
cet.”

Considering how much Drawbaugh worked on other things, it is
clear that this is a worthless witness. He has no way of ﬁxing any
date, except a memory, which he confesses to be worthless about the
times when he saw talking machines. The Court knOWs that he
never heard distinctly through F and B, nor through an apparatus
composed of A and any transmitter alleged to have existed before
1876. He says that he never used any machine except on the two
occasions named, though he was at the shop hundreds of times.

This man’s deposition gives an insight into the case. He never
worked at the shop; but, for nine years, was a constant frequenter
of it; it was a loaﬁng place for the idlers. The partners and Work-
men for the Faucet Company, and the Haucks, knew nothing of a
telephone ; Drawbaugh’s advertisement (p. 199, supra) knew nothing
of it; the idlers know all about it, and have the assurance to name a
date.

It cannot be urged that the busy men passed it by and the idlers
and loafers spent their time playing with it; this fellow, the type
of these, says that he only tried it twice in nine years; the same is
true of others. Simply, the worthless men are the only ones whom
the defendants can ﬁnd for witnesses.

No. 36. R. K. Shiremcm, defts, i, 271; app. 79. —Paintcr.
At a time “ not less than eight years ago” (he testiﬁed in May,
1881), and in the fall, but he is not sure whetherit was 1872 or not,
he ﬁrst saw F and B, but did not use them. About three, and cer-
tainly not more than six, months afterwards he saw them and other
talking machines. Stood close to an instrument fastened to the wall
and recognized Drawbaugh’s voice, and correctly and distinctly
heard the spoken words. N0 receiver produced or described, alleged
to have been made before Mr. Bell’s patent, could have been " fastened

394 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

against the wall of the building”; a string telephone might well be,
and generally is. At this second visit saw A, D, E and I; the
earliest dates alleged for A, D and E are from eighteen months to
tWD years after the date alleged for his second visit. He has visited
since and up to the present year; cannot say how often, but Draw-
bangh was habitually at work on talking machines; he never tried to
talk except on the one occasion alleged. Plainly a worthless mem-
ory, wrong as to results and instruments wherever it can be tested.
His cross~examination showed the worthlessness of his memory.

N0. 46. John C’. Smith, defts, i, 349; app. 91.—-Machinist;
born and brought up at Eberly’s Mills; his father moved away from
there in 1878. Says thatin 1872—3 he had leisure on Sundays, and
generally spent them at Drawbaugh’s shop.

" Q. 20. Did you hear any talking carried on through those in-

struments during that year?
“A. To the best ofmy knowledge, I did.”

Listened at B and " supposes ” that Drawbaugh talked into F;
did this " frequently.” Describes them as the only tWo he saw that

year, which is fatal to the date claimed for the better instruments C
and I. In substance he puts it that was there afterwards down to
1880, but not much after 1873, and he does not know of any elec—
trical contrivances Drawbaugh worked on except talking machines.

Says that he has talked through A and D, and seen others looking
like E,’G, LK, L, M, 0, after 1873. Can give no time for A and D,
and does not know whether it was a long time before his father moved
away (1878) 01' not.

But this witness has been put in a bad light. He lived in the vil—
lage and worked for the Faucet Company about a year, in 1868—9,
but does not suggest that he ever heard of a talking machine before
the occasion he named as in 1872—3; this was kept out of his depo-
sition. The appearance given by his deposition, that he was not
much there except in 1872~3, is all that gives credence to the date
named; the fact is (testiﬁed to by Drawbaugh, defts, ii, 1007) that
he worked there during a good part of the year 1877, and built a
small steam engine there; this fact did not appear in his deposition.
Doubtless he did see F and B then.

THOSE WHO SAY THEY HEARD IN 1872. 395

In that year Drawbaugh made two or three electrical clocks from
four to seen feet high, and the witness had forgotten them.

A witness of bad memory, deceiving the Court, and perhaps him-
self, as to his means for ﬁxing his date, giving a. deposition full of
false color.

No. 55. IIem'y F. Drawbaugh, defts, i, 414; app. 112. —
Brother of the claimant, and extensively employed in procuring
Witnesses for the defence. In 1869—1873 he had a distillery, and
during that time was at Daniel’s shop “ as often as twice a week. I
don’t mean to say thatI was there every week twice” (complts, iv,
exhibits, 118). Certainly he should have known of a talking ma—
chine as soon as there was any. Says that he saw B and F for the
ﬁrst time When he was having some distillery Work done at the shop
at a date ﬁxed by his books as July and August, 1872. Indeed, that
Daniel was so busy on talking machines then that he could hardly get
his work done ; no suggestion that he ever heard of the thing before.
He understood what was said through F and B, and among other
things he heard “ Harrisburg, is the capital of the State, situated on
the banks of the Susquehanna River.” This is, in fact, a peculiarly
difﬁcult sentence on account of the sibilants, unless it was a familiar
phrase, in which case its peculiarity would make it easy to recognize
without real articulation. Several witnesses mention this phrase,
and it is almost, if not quite, the only one mentioned, so that it
would seem to have been familiar at some time.

From July, 1872, to May, 1876, he was at Daniel’s quite often;
he says that Daniel was always at work on the talking machine.
Daniel often asked him to furnish money for it; asked this ﬁrst in
1872. Has seen the other instruments and talked through some, but
cannot distinguish. Cannot give any dates except very vaguely, and
those generally wrong, according to the defendants’ story. Saw A
" shortly after” July, 1872, —- "may have been the next summer.”
It is not pretended that it was made before the summer of 1874.

This interested witness tells a story which, on its face,is too vague
to be of any value except as to the incidents of July, 1872. As to
those, he proves, if anything (1) that ﬁve years must be knocked
off the defendants’ story of the existence of practical instruments,

396 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

and (2) he swears to results which the Court knows he never ob-
tained.

No man who listened at D and E before telephones were heard of
elsewhere, and if they performed then as well as their present con-
dition indicates, could doubt that they embodied a successful inven-
tion; a friend of Drawbaugh’s who had heard them a year before
the Centennial would never doubt that it should be ranked as the
great glory of his life. In the faucet interference casein 1879, Draw-
baugh undertook to assert that he was entitled to be called an in—
ventor of originality, and one who did not drop his ideas before they
reached the point of practical success. He asked questions to this
end of David A. Hauck, who worked in his shop about half the
time from the summer of 1873 until 1876, though mostly in 1873—4.
Hauck expressed the opinion that Drawbaugh was not an originator,
but a mere improver, and enumerated several contrivances, but he
did not name the telephone, nor was it suggested to him (complts,
iv, exhibits, 252). Then Henry F. Drawbaugh was asked to " enum-
erate ” the machines he had seen his brother make of his own inven-
tion that worked satisfactorily, and he enumerated fifteen by name,

-——but no telephone (if). 121). Two days afterwards Daniel Draw-

baugh was asked what machines since 1866 he hal conceived and
perfected that worked satisfactorily; he enumerated several, but no
telephone (17). 143). If he had had, or if he believed he had had,
D and E with their present structure more than a year before, and
the microphones L. M, G, O, —at least as early as (v. p. supra)
the time when Mr. Bell’s telephones were heard of, neither truth
nor human nature would have permitted such answers. These dep-
ositions of Daniel and Henry were put in evidence during Daniel’s
cross-examination; he read his own, and said that there was nothing
to change in it (defts, ii, 1070) ; his counsel did not re-examine him
about it, though attention had been called to this particular answer,
which was extracted and printed by itself in our moving papers in
this case. The courts always hold such a course to be conclusive;
see the authorities, pp. 129—132, supra, 463, inﬂ‘a.

Now Henry Drawbaugh pretends, and it is pretended for him by
sundry witnesses, whom he has procured to say that they remember
remarks he made to them many years ago, that, although he may

THOSE WHO SAY THEY HEARD IN 1872. 397

not have realized the money value of a speaking telephone, yet he
always knew that his brother had both invented and perfected it, so
that no more mechanical skill was needed, and that it was a great
and Wonderful invention. He would have furnished the money if
any such condition of things existed. He at one time had a distil-
lery; at another time he run a line of his own cars to Baltimore, to
Philadelphia, and to New York (dcfts, i, 416). He proposed to
manufacture his brother’s faucets and arranged to buy and ﬁt up a mill
for that (defts, i, 427) ; but his brother had no telephone that
tempted him. Can such tardy pretences stand a minute against the
statements in his faucet deposition; could those statements have
been made if the facts and if his belief about the facts were what he
now wishes the Court to think?

No. 89. David M. Ditlow, defts, i, 597; app. 187. -—Drover.
He says that he “ ﬁrst knew” of talking machines " nine years ago,
about 1872,” but oﬂers not the slightest reason for naming th at date.
Says that through it. he understood what was said.

He was hem and biought up a little over half a mile from Draw-
baugh’ s shop, and lived theie until his fathe1’ s family moved away
in April, 1875. From the time he ﬁrst saw the machine until April,
1875, he was at the shop, he thinks, “ tw1ce a week,” and there is
no reason to doubt that he was there as constantly before that,
though he does not state. F1om April, 1875, until 1880, was there
about once a month. There 1s nothing whatever, theietore, for him
to ﬁx a date by; and the date he swears to, like Hemy F. Draw-

baugh’ s, falsiﬁes ﬁve years of the defendants’ stoiy.

But one interesting palt of his story is that he swea1s that he can-
not 1ecognize any of the exhibits produced as the instruments he
talked through. This 1s not because he has f01gotteu, but because
he saw a different inst1ument. He describes it as a machine with
tin tubes at each end and a wire wrapped with string,” and he does
not state and is not asked whether there was any electricity con—
meted with it. This was so pltiuly a stiiug telephone that the de—
fendants obliged the claimant to swea1 in to1ms that no such instru-
ment as Ditlow described had eve1 existed, and that Ditlow must
have referred to B. But Ditlow did not 1efe1 to B, for he looked
at the exhibits and said he did not recognize any of them.

398 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Ditlow also says that during his weekly visits before 1875 Draw-
baugh was always at work on talking machines,but after the spring of
1875 never, and that between July, 1872, and 1875, he never saw any
except the same ones he saw on the occasion described. ,

How much ofa burden Will this deposition carry? Can the de-
fence ask anything better of the Court than they tried to prove
by Drawbaugh, viz., that the witness is absurdly mistaken? or
else he hurts them, for there is a great deal of this string—telephone
proof in their record. The depositions of the rest of the Ditlow
family (q. v. app. 582 et seq.) are very bad for the defence.

No. 102. W. Senseman, defts, i, 668; app. 217. ——Horse trader.
At a time which he ﬁrst says was 1872, and afterwards (X 19) 1873,
he was at Drawbaugh’s shop. B, F, C and I, and none others,
being thrust before him, he says that he thinks he saw them there,
and that they talked through some of them, but he cannot say which.
He does say, however, that the talk was (ans. 7) “through a small
tube or tin can or something he had.” The result was : —-

" Q. 10. Could you hear and understand through the machine

what he said to you?
“ A. Icould hear, and some oflhe wmds Icould understand.”

“ X Q. 21. How did he come to talk to you on that occasion?

“ A. I used to visit him, and he told me his idea was to convey
sound, and he thought he could do it; that he had made different
machines, but had never made anything out of it.”

This witness ﬁrst knew Drawbaugh in 1872. After that Draw-
baugh said “ he thought he could do it,” and what he did was to
produce a noise in which only a few of the words were intelligible.
Will the Court believe that the claimant who made this statement,
and produced only this result with an habitual visitor, had for ﬁve
years had a practically operative instrument through which anything
said could he understood, and newspaper advertisements he intelli-
gibly transmitted? This states the defendants out of Court;

how many witnesses must’they call to get back again, and what
value is the Court to give to the ” net result” of the defendants’
own record, a part of which has got to expend itself in contradicting

another part?

THOSE WHO SAY THEY HEARD IN 1872. 399

This is the ﬁrst listening .witness who has anything more than
unaided memory to ﬁx a date by; he says that he lived at Eberly’s
Mills, 1872—3, and has never been at the shop since; the latter
statement, which is the only important part of it, of course, is
memory still. But the defendants cannot survive many such depo-
siticns.

No. 113. Mrs. George Drawbaugh, defts, i, 721; app. 236.

No. 114. Mrs. George Free, defts, i, 723; app. 236.

Mrs. Free testiﬁes that she went to Drawbaugh’s shop at a time
which she arbitrarily ﬁxes as September, 1872. She has not the
slightest reason for ﬁxing that date, and so vital a question as the
invention of the speaking telephone a woman’s say-s0 is hardly to be
the end of it. It is indeed pretty certain that she was not there
at that time, because her husband, George Free, a Witness for the
defendants, does not pretend to have known anything of it until two
years afterwards. Mrs. Free’s sister was at that time married to‘
George Drawhaugh. Daniel Drawhaugh’s nephew, and they all of
them lived Within a mile of the shop. Mrs. Free says that being at
the shop she heard Mr. Drawbaugh say through the machine, " good
afternoon, ladies,” and more, which she has forgotten.

" (2.11. Could you plainly heat“ through the machine what he
was saying or not?

" A. Yes, sir.”

She asserts that she recognized his voice also ; does not undertake
to identify the machines.

The sister, Mrs. George Drawbaugh, swears that she was present
at the time; says that she saw the talking machines, that she did not
listen at them, and did not know whether he talked tothe others
through them or not; her attention was entirely devoted to some
drawings nailed up on the wall; does not undertake to identify any
instrument.

Why is it that the defendants call the claimant’s nephew’s wife,
and the witness Free’s wife, her sister, neither of whom really know
anything, and do not call the claimant’s wife, who must know all
about it?

400 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

No. 151. George Natclzer, defts, iii, surbtl, 141 ; app. 483.
—Bar-kceper; age, twenty-ﬁve years. In 1871—2 lived at Eberly’s
Mills with his father, who was the miller. Says that he heard Draw-
baugh talk through a machine ; does not identify it, and the descrip—
tion he gives of it does not ﬁt any machine produced; and none
produced as of that date could produce the results stated.

His sister, Mrs. Blanche Belle Spangler (27). 176), is called to
support him. She says that at the shop, and being then ten years
old, she was lifted up to talk into the machine; she never listened.
No transmitter alleged as of that time was or could be fastened to
a wall so that a person needed to bring the mouth to any particular
height. But this girl was then too young to be a witness; and there
is something too absurdly ridiculous in the notion that 'a little girl,
too young to testify at the time of the alleged occurrence, can be-
come a good witness by twelve years’ growth. We have shown in
the appendix' that the story which the Natcher family have told for
the defendants is a manufactured falsehood.

No. 272. W. H. Martin, defts, iii, surbtl, 827; app. 669. —A
person whose character as a witness is well attacked by the testi-
mony of others in rejoinder, says that he went to Drawbaugh’s shop
in 1872 and heard talk through a talking machine, which he cannot
identify nor describe. He listened part of the time or talked part of
the time in the garret of the shop, a place where no other witness
pretends ever to have seen a telephone. It hardly needs much to
overthrow him when he admitted on the day he testiﬁed that he was
intoxicated at the visit twelve years before. The defendants per-
haps argue, as they did in the case of Mrs. Belle Spangler, that time
has cured that, and that he has got over the effects of his cups. The
machine must have grown sober, too, for no instrument alleged as of
1872 can give the plain talk he asserts.

Among other vagaries he swears (ans. 45) that they changed
places, which means that the apparatus talked only one way; and
then (ans. 48) that the man at the other end answered back. He
saw the machine but once; he does not say how often he has been
at the shop, but he lived within a couple of miles until some time in
1876. He attempts to ﬁx the time by an alleged recollection that it

THOSE WHO SAY THEY HEARD IN 1873. 401

was when he took a pair of boots to a particular Milltown cobbler to
be cobbled. I

No. 274. F. Keefauver, defts, iii, surbtl, 837; app. 671. ——He
was the hotel keeper and bar keeper who says that he accompanied
Martin on this visit. His story differs somewhat from Martin’s, but
not in its improbable and untruthful features.

1873.

No. 19. Henry Bayler, defts, i, 157; app. 44. —-Retired lum-
ber merchant; apparently a man of means; an important witness,
very damaging for the defence.

From a time before any period under inquiry in this case, two
lumber yards with steam planing mills had existed at New Cumber-
land, about three miles from Drawbaugh’s shop. H. R. Musser,
partner in one, was an excellent witness called for the complainants.
The other yard was carried on by Christian Eberly, then by Eberly
& Lee (J. F. Lee), then by Lee; then, 1873—7, by Lee &
Bayler (the Witness). Drawbaugh did their ordinary machinist
repairs and bought lumber cf the Lee yard for at least ten years
before 1877. Eberly, Gov. Geary and 13. Frank Lee, brother-in-
law of Gov. Geary and brother of J. F. Lee, were partners of
Drawbaugh in the matter of his improvements in nail-making ma-
chinery from 1866 until about 1873—4. All that was generally
known about any talking machine must have been well known to
them; and if there was anything successful or even promising in it,
these people had the requisite means and position to push it. Gov.
Geary died in 1873, and his brother—in—law in 1877 ; but a. practical
speaking telephone brought to their knowledge could not have re-
mained unpatented nor unknown; that they did nothing about a
speaking telephone is therefore the highest proof that they knew of
nothing that would speak.

Christian Eberly testiﬁed for the defence. His deposition is so
wildly inconsistent with the claimant’s story as to give it no value.
He swears to seeing instruments years before Drawbaugh pretends
they were made, and the defence had to have Drawbaugh in terms
contradict him (see app., p. 39, and defts, ii, 862, ans. 404). But

402 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

if there be any truth in it, it shows that, though he pretends that
Drawbaugh spoke to him of a talking machine, he did not believe
that it was sufﬁciently completed to patent, and that Drawbaugh
never had him try it; if he had a practical instrument, ﬁve minutes
would have removed all doubts.

John F. Lee was twice called to prove dates of collateral facts,
etc., but was not asked about talking machines; clearly, he knows
nothing (defts, i, 632; iii, surbtl, 211).

Next comes Bayler. As the relations of neighborhood and busi-
ness existed between him and Drawbaugh up until some time in
1877,—a year after our patent,—-—any date essential to the case
must rest on mere memory, and that is all he pretends to. I

The claimant’s story is, that in 1867 he had the tumbler F and the
tin can B; that at a vague period, about 1869—70, and before
midsummer, 1871, he had C and I, which, he says, and with truth,
so far as one can judge from his description of them, were much
better.

Bayler says that While at New Cumberland, and, " as near he can
tell,” in June, 1873, Drawbaugh asked him to come to his shop to
see some invention. He now represents that this was the talking
machine, but he also swears to the inconsistent fact that when there
it was the faucet and not the talking machine which engaged his
attention. He says (ans. 28, p. 161) :—

“Iwas aftei t/Lefaucet intewst, not knowing that there had been
a company formed before that, and at my ﬁrst visit I did not know
that he had sold,” etc.

He says that while there Drawbaugh shoWed him "a very crude

machine.”

"After showing and explaining it, I 1',emarked 'VVhy, D:,’1n —as
I familiarly called him, —— that 1s Virtually a talking tolegiaph,’ and
advised him to take out a patent; says he, ‘If I had the means I
would , it you will advance me the means to p1ocu1e a patent I will
give you one half intexest. ’ ”

He says that Drawbaugh then talked through the machine and he
distinguished his voice; it is not entirely clear whether he means
that he also understood what was said. Thought seriously of put-

THOSE WHO SAY THEY HEARD IN 1873. 403

ting in $200 or $300, but did not because of his other business.
Thinks he then saw F and B and listened at B.

" They were connected in some way, but I do not remember in
what way, as I paid not much attention to the instruments ” (x-ans.
49, p. 163). '

Says that he has not been at the shop since the summer of 1873.

The Court knows that F and B will not talk; and since Draw-
baugh swears that C and I are better ( pp. 162 et seq., supra), it is
not possible to believe that they existed when F and B were shown
to one who had been invited to come, in hope that he would pur-
chase an interest. It is certain that such a wretched contrivance as
B never would have been used even once after the receiver I ex-
isted. The claimant himself testifies that after I was made, B went
to the attic; the mice ate off the membrane, and it was never re-
placed (app. p. 338). As this man could not have gone there
before 1873, the date alleged for C and. I is conclusively disproved
by defendants’ own record.

But the witness’s alleged date is disproved. He says on direct
examination (p. 158) :-—-

“A. 9. The machine was on a table in his workroom or oﬂice, on
somewhat of a raised shelf, the wire passing out of that through
another room and into the third one, as it were.”

It is a fact proved in the case that this arrangement of rooms and
partitions did not exist until the Axle Company put up the partitions
in the spring of 1875, and it then remained until 1878.. With this
man once thrown over two years, there is nothing to ﬁx his date
anywhere before the summer of 1877. At some undeﬁned time
after the spring of 1875, F and B were therefore the best to show
to an expected purchaser.

The witness then went into a disquisition upon Drmvbau‘gh’s pov-
erty and the money relations between them. Every statement he
made was literally and substantially disproved by the actual accounts,
and by an afﬁdavit Drawbaugh made a little more than a year before
this deposition, in a suit between them to settle their accounts, and
in which Drawbaugh prevailed, in accordance with his afﬁdavit,
though by default. Bayler swore that Whenever his ﬁrm owed

404 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Drawbaugh for repairs they paid up close in cash, and that Draw-

baugh was so poor that at night he sometimes did not know where
the family breakfast was to come from. The facts proved by the

_ accounts and Drawbaugh’s oath are that the ﬁrm never paid Draw-
baugh a cent of cash; and that in June, 1873, and from then until
1877, as the account varied with work done and lumber furnished,
they owed him from thirty to ﬁfty dollars the whole time ——enough
to pay the fees on a patent. The man has sworn to a story which
was false, and when he swore to it Drawbaugh knew that it was
false.

Within a month Drawbaugh received in cash $425, from the Faucet
Company. He did not spend it on telephones, but invested $300 of
it in paying off the last mortgage on his house (pp. 343, 352, supra).

How far does Bayler go towards making up a clean record which
can carry the burden of this case? One cannot analyze such a depo-
sition to sift out what value it has ; a reckless imagination is proved
to have played so large a part in it, both as to facts and dates, that
there is nothing left in it to rest upon.

No. 90. John .B. Drawhaugh, defts, i, 599; app. 189. —
Brother of the claimant; age, sixty—ﬁve years; lived next door to
him in the Village; millwright and machinist; has worked a good
deal in the shop: employed by the defendants during this contro-
versy. Says that Daniel ﬁrst showed him a talking machine in the
last part of 1872 or beginning of 1873, which is about the time
Henry Drawbaugh says he ﬁrst saw one. Says that he then helped
his brother‘to experiment; that he spoke into the machine that
“Harrisburg was the capital of Pennsylvania; Washington City the
capital of the United States of America, and Carlisle the county seat
of Cumberland County,” and something else; Danie] said that he
heard. He cannot say what. he talked into (1). 605, ans. 31) 2——

“ I could not positively say whether I talked into F or one like it
or M, or only like it. I only remember that it had a mouthpiece on
the top.”

Does not remember What Daniel listened at, whether B or C or
what. Says that a month or two later he again talked and Daniel
“ understood all that I said.” Says that he did this on half a dozen
occasions in 1873 and 1874. Says that he accidentally saw F and B

THOSE WHO SAY THEY HEARD IN 1873. 405

in 1869, but Daniel did not show any to him until the occasion which
he thinks was in 1873.

He was, moreover, one of those who always saw Drawbaugh at
work on talking machines and never on anything else. He disap-
proved of Daniel’s wasting his time on experiments; he was right.
But the defendants want the Court to believe that all he disapproved
of was the one thing valuable -——the talking machine.

It became evident on his examination that he had no recollection
properly so called: first, he swore that he talked only and did not go
into the room where the receiver Was; then he said that he listened
also; then he said that he thought he had confused two diﬂ'erent
occasions; then he said that when he listened he could not under-
stand and told Daniel so, “ and then he tried to adjust it so that I
could understand it,” and then he understood " some words, but not
all.”

When it was that he ﬁrst listened he does not profess to state, ex-
cept that he " thinks ” it was in 1873-4, and " don’t remember” that
he ever listened before he began to work for Hauck & Co. in July,
1873. He worked for them about a year in Daniel’s shop, 1873—4.
Then after a day and a half of deposition the defendants tried to
offer an apology (p. 622) :—

" Q. 171. Your hearing is slightly defective, is it not?

“A. Yes, sir.”

Perhaps so now, but there has been no complaint that the trouble
of ten years ago was in his ears.

Plainly upon this the defendants could not hope to have the Court
believe the claimant had practical machines in 1874, much less that
he had them seven years earlier, and that the neighborhood was full
of their fame. They had known that this was John’s recollection,
but from his relations to the claimantthey had got to call him, so
they had hedged by having Henry, and afterwards Daniel state that
John discouraged his working on the instruments, and therefore
probably did not know about them. But the fact stated by John is,
that he thought Daniel wasted his time on a lot of things, not
this alone; and the further fact is, that John is presented as one who
did know. They put him forward to swear (ans. 69, x 145—7) that
of his own observation he knew that from 1869 to 1880 Daniel did

406 THE DRAWBAUGII FAMILY.

devote substantially all his time to the talking machine; the absurd
falsity of this does not help him or them; and the real fact is, that
he did try a talking machine at some time, and it would not, talk. His
incredulity was based on thatfact; in spite of all the talk about poV-
erty, he knew that his brother could get it patented if worth while.
He testiﬁes that about the time alleged for these experiments (1873),
"I said to him, ‘Dan, if this is as good and as profitable a machine
as you represent it to be, why don’t you get it patented?’ ” He re—
ports no answer.

That is the question the law puts; and the Court ﬁnds that the facts
neither furnish nor give room for answer to it.

Yet Zearing could hear them ﬁve feet away; and Eicholtz under-
stood when the machinery was making its loudest noise.

Drawbauglz Family. The Court will not fail to observe their con-
dition. On p. 455, infra, we have sh >wn 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 ab<olutely and with-
out snbstantial contradiction untrue. Unreliable in themselves; in-
consistent in matters of substance when compared with each other,
and therefore not true representations of facts.

When fairly sifted, the whole evidence worth discussing to bear
the weight of this defence Could be put inside of one hundred pages;
the rest is show and padding.

Dales. ——T,hey have all been neighbors or visitors for years before
and since, except Hainme, U. R. Nichols and Draper. Nichols, ap-
parently one of their strongest witnesses, has the true date of his visit
absolutely proved, without contradiction, to have been two years after
the Bell patent, instead of a year before; and the facts he relates

about that visit, when its true date is ﬁxed, make him a witness fatal
for them. The same is true ot Draper. llamme cannot say what
instrument he used; his whole description of it points to a string
telephone more than to an electric telephone, and, as he does not
describe what he talked with, we cannot test him by trying whethv'r it
will talk; questions to him indicate B which will not talk. All the
others rest their dates on more memory, sometimes stating associations
ANALYSIS OF DEFENDANTs’ PROOFS. 449

which rest on memory only. One, Dr. rl/Ioﬁitt (No. 27), swears to
the use of A a year before the time when the defendants allege it was
made. Another, Decker (34), swoars t0 the use of D a year before
the time when they allege it was made. S/zz'reman (l4) swears
to A, D, E, two to three years before they are alleged to exist.
If. F. Drawbaugh (16) swears to A a year before it is alleged to
have been made. Others, 8. 1576012on (6), Bafﬂer (24), Musser
(34), Draper (36), G. A. May (40), U. R. Nichols (39), [ﬁnde-
gmﬁ' (44), give, in their depositions, statements of matters neces-
sarily connected with their visits, or forming an essential part of their
descriptiors. The true dates of these show that the visits which
they profess to desciibe were after the Bell patent and not before.
Jacob Evans (48), 0. [fa/may (45), and Gray/bill (46) should
fairly be added to them. Thus elev‘en or fourteen out; of forty-nine
are speciﬁcally proved to be fatally wrong about dates. They are
fair samples; all rest on mere eﬂ'orts of memory.

Self-coniradz’cted.——Three of them, A. Ditlow (38), Jacob Evans
(48), O. B. Ifalmey (45), had previously sworn that they had
not known of telephones before the Bell patent; they originally
testiﬁed after such inquiries, and retracted under such circumstances
as to make it doubtful whether they should be classed as worthless

men, or as strong witnesses for the complainants.

Soy-convicted—Finally 39 of them have sworn to speech
through instruments which the Court knows never gave it, if
they were any of those produced or alleged. They are Nos. 1,
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,
36, 37, 39, 38, 46.

These classes include all of the forty—nine except Reneker (42),
Jere Fry (43), Fettrow (41), Simmons (47), Hamme (49).

Rencker, Fry, Simmons and Fettrow have been near neighbors and
visitors ever since. Simmons has been in the employ of the defend—
ants as a laborer during three years of the suit, and his testimony
shows him to be simply a liar. Hamme had two companions at the
visit, neither of whom listened ; neither of the three can identify the

450 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

instrument; and Drawbaugh does not tell us what it is. He is an
eleventh-hour witnesses, though Drawhaugh had Visited one of his
companions at least at the beginning of the controversy and did not

call him.

So far the testimony rehearsed has related only to the tumbler F,
the tin can B, the breastwork C, the cuspadore I, and the ﬂat round
receiver A. The defendants themselves have shown by the New
York tests that, even with the utmost skill and experience of to—day,
no two of these can be connected together to form a speaking tele-
phone which will transmit intelligence,-—which will make the listener
know what the speaker wants to tell him. The Court knows this as
an absolute and ultimate fact. Such results as these can yield, if
obtained in the ﬁrst year of the conception, might encourage a cour-
ageous man to hope ; but it' seven years had brought nothing better,
he would be pretty sure to believe that the contrivanee would never
get beyond a toy for private experiment, or for the gratiﬁcation of
curiosity. Their dates are not What this case will turn on, for they

are not the dates of success.

D AND E.

THE SET D AND E IS THE EARLIEST ALLEGED PAIR GOOD ENOUGH

TO BECOME LEGALLY MATERIAL; ON ITS DATE TIIIS CASE MUST

TURN.

The position to which the New York tests degraded F, B, C, l, A,
reduces the controversy to one question of law or one issue of fact,
for which their enormous record dwindles to ﬁfty or seventy~ﬁve
pages.

The authorities quoted on pp. 516—24, infra, are conclusive that the
defendants must show, beyond any poSsible doubt, that. the claimant
had made practical instruments before the date which the lth assigns
to Mr. Bell’s invention. ' hat date in this contest, according to the
establidied rule, is the date when he had an adequate conception, and
disclosel it to persons capable of understanding it. That date is
October, 1874. The defendants do not allege D and E until Jan—
nary, 1875.

\Ve propose, nevertheless, to consider what proof there is tend-
ing to snow that D and E were made before the date of the Bell

THE MAGNETOS D AND E. 451

patent. Upon this, the only material issue of fact which Draw-
baugh’s story now presents, their evidence in support dwindles from
the proffered four volumes to ﬁfty or seventy-ﬁve pages.

We would not, however, lose the rest. Its now proved Worth-
lessness is suﬂicient to destroy all conﬁdence in the enterprise which
it was produced to support. Nor far from a hundred witnesses are
called to proVe a date for the tumb‘erand tin can, F, B, as recognized
talking machines; twenty or thirty to swear that they heard perfect
speech through them. After that the defendants, for the ﬁtst time,
bethought themselves that the Court would insist on trying them.
They test so-called reproductions, and they will not talk. What
a commentary on the worthlessness of the testimony! What light
does it throw on the true character of a case built on assertions which
the simple trial that men seeking for truth would make at the out-
set demonstrates to be falsehoods l After such a case has been so
prepared and presentetl, one need not be surprised at anything in it.

Everybody concerned in the preparation of this case for the de-
fence is largely interested in purse and as promoter; there is no
folly to which the self-delusion of such persons may not lead them.

Judging the defendants’ proofs alone, the character and impor—
tance of the instruments D and E, as compared with what we now
know of their alleged predecessors, are especially to be considered
in weighing the proof afforded by the recollections of the witnesses
and the course of conduct of the claimant and those in contact with
him, because, if the history asserted on behalf of Drawbaugh is
true, they were the succes~ful fruit of eight years of incessant devo-
tion to one idea, —- which he pursued under the greatest difﬁculties,
in abject poverty, to the neglect of his family, against the lemon-
strances of his wife, and amid the doubts and disbeliefs of his friends
and neighhors, who regarded him as a deluded if not an insane man.
This is the story they allege of those eight years, and if it be true,
the successful accomplishment of his long-sought object in the con—
struction of these two instruments was a triumph which justiﬁed
him, and must have removed every doubt of his friends, and silenced
every remonstrance of his wife. With the slightest effort on his
part, such eﬁort as no man could have failed to make to bring so
great an invention to the knowledge of existing friends who could

452 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

have taken hold of it as they and others had taken hold of his
previous inventions, would have secured pecuniary aid to patent the
invention and introduce it to the world. The successful reduction
to practice of such an invention must have a history after it as well
as before it. An adequate cause must have led to it, and results in
some measure commensurate mUst have followed from it. The
claimant’s history must be examined in the light of it. If effects
do not appear, it is because the cause is not there; and in judging
human testimony in such cases judicial experience has ranked, and
has found it essential to the administration of justice to rank, the
conduct of men far above their recollections.

We now turn to the history of these instruments as given by the
defendants’ witnesses after January or February, 1875, when it is
alleged they were made. \Vhat use was made of them? Who saw
them, and who did not see them, of the frequenters of Drawbaugh’s
shop, and what effect did they produce? Every such person must
have seen and used them. Drawbaugh says (defts, ii, 826) :—

" Q. 259. To what extent did you use the instruments D and
E?

“ A. I used them very often ; I couldn’t state how often.

" Q. 260. Did anybody talk through them or listen through them
besides yourself?

“ A. Yes, sir; a great many persons. \Vhat I mean by that is,
a great many persons who collie to the shop there.

"Q 261. How satisfactorily did these two instruments work?

“A. I considered the 7 Worked well; Jersous listeuinor could hear

.l a

all that was spoken through them.

“Q. 262. How far were they tried apart?

"A. I tried them on different lines in the shop, about the same
as i did the former instt uments.”

It could not be otherwise. They were his ﬁrst practical instru-
ments. Rather feeble, so that we doubt whether untrained men
would have understood much with them; but still they were speak-
ing telephones, and witnesses profess to have heard well with them.
If they were then what they are now, they required no battery and ’
no adjustment, and could have been used without a moment’s

trouble.
The defendants’ answer and their depositions dispel all sugges—

«maria swimmer“, < . in? ~

THE MAGNETOS D AND E. 453

tious of privacy; they have asserted and labored to show that he
courted publicity and attained it.

Under these circumstances it is reasm'tble and just that the de-
fendants should be held not merely to such proof of the use of the
instruments as would be considered complete and satisfactory in or-
dinary matters, but to exhaustive pronf; the failure to come up to
the full measure is of itself proof that the instruments were not in
existence to be used and to create a history for themselves. The
authorities quoted on p 129, supra, show the vigor and effect with
which the Court apply that rule, the gist of which is stated by Lord
Mansﬁeld :—

"It is a maxim 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.”

The defendants have felt that their case required this, and they
have undertaken to create an appearance of compliance with it.
They have spent four years in preparing and taking proofs, and have
presented three hundred and sixty-six depositions. But their record
is a book of padding. D and E are the ﬁrst real talking telephones,
and the claimant, mebauglz, will not assert that lee made them
before the (late of 1117“. Belle patent; they have found only seven men
—we might fairly say only ﬁve -— who are Willing to say that they
even think that they used D or E before the date of Mr. Bell’s
patent. Yet certainly Drawbangh is right in one thing: in the ﬁrst
year of their existence (whenever it was) "a great many pet-tons”
must have used them.

The defendants" evidence about D and E.—Elsewhere we shall
consider the whole proof about D and E. We now prop )se to see
what the defendants’ record says about them. We do not believe
their story; we think that it is conclusively disproved; but we desire
ﬁrst of all that the Court shall know exactly what their own record
offers bearing upon it. This is the more important because there is
almost as much irreconcilable conﬂict between diﬁ'erent parts of
their own record, and on matters vital to the ease, as there is between
their allegations and our proofs.

BRIEF FOR COMPLAINANTS ON FINAL HEARING.

m ,
Section of E. Section of D. Rear of D.
All one half size.

The questions about these instruments are two: ——

1. Date.

2. Identity.

Their apparent value rests upon the fact that to-day they will talk ;
their real value rests upon the mere arbitrary assumption — or proof
adequate for the case if there be such —— that at the date alleged they
Were just what they are now.

1. Date. ——The positive proof afforded by the tests which the de-

fendants conducted in New York show that the production of these

instruments in their present state marks the passage from an appa-
ratus of which its most partial friends could only say it promised, to
an apparatus which all must admit performed. It must necessa-
rily have been an epoch which would ﬁx itself in the minds and
show itself in the behavior of the claimant and his friends,— if it
came before telephones were known elsewhere. And after the pro-
duction of D and E in their present form, no chance visitor at the
shop, gratifying his curiosity with an attempt to transmit speech,
Would have used any of the alleged previous instruments; particu-
larly no man could have used, as a receiver even for private experi-
ment, looking to the improvement of an existing transmitter, or
even to show whether speech could be transmitted by a discarded
one, such contrivance as the tin can B after D or E existed. More—
over, Drawbaug‘h’s express testimony is that he did not. The use of
B at any period therefore disproves the existence of D or E at that
time.

n: rm 2—, vmnmm-wm

THE MAGNETOS D AND E. 455

In considering the defendants’ proofs, even taken by themselves,
it is to be remembered that we are inquiring about an invention
both important and startling; if the manifestations in the record do
not correspond to what such an invention in a perfected form would
excite, the evidence does not prove, it disproves; it does not show
its ability to carry a burden or to overcome strong counter-proofs ;
it of itself defeats those who invoke it. When the housewife draws
lukewarm water from the kettle she knows that it does not boil as
well as if the water came out cold. A ten of cork will not make a
sinker.

Itlentz'ty.—VVith the possible exception of Harmon K. Draw-
baugh, the claimant’s nephew, as to D and E, the whole question of
identity of these and all the other instruments rests on the word of
the claimant alone. No witness produced pretends to have known or
had the faintest idea how any instrument operated, and except this
nephew no one pretends to any knowledge of the structure itself, nor
was one of them capable of it. The utmost they can do (and pres-
ently it will be found that they do not do this) is to think that ﬁve or
seven years before testifying they saw or used a walnut box which
externally looked like D or E. This is not a fanciful remark;
many ofthe witnesses swear positively that F and B and C and I
were, when they listened at them, in the same condition as new; F,
B, C are now mere wrecks; when I was produced and sworn to by
many of the witnesses, it consisted of nothing but the shell; the
present diaphragm has been made and placed there since; the mag-
net, whenever made, was found in the garret and placed there since
witnesses swore to the shell instrument without it; and they swore
to it in the same terms before and after the change. Drawbaugh
says that L and M once contained microphones; that contrivanee
has been taken out and they are now mere magnetos, — not a wit-
ness knoWs of the change or knows what they were when they were
seen. '

Undoubtedly, proof, if reliable, that a witness talked well through
D and E strongly confirms the claimant’s testimony that they have
not been materially changed, but a witness who has sworn that he
understood at B all that was spoken into F has condemned himself

so that his testimony as to results can help no one.

456 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

It is alleged that these instruments were made about January,
1875,—say a little more than a year before the date of Mr. Bell’s
patent (March 7, 1876). The defendants have bestowed four years
upon their proofs and examined three hundred and sixty~six wit—
nesses. Plainly, they have ransacke ' the community. Only eight,
upon the most liberal construction, pretend to have talked through
D and E before Mr. Bell’s patent; clearly, two of them are mistaken
in their dates, and made their visits after Mr. Bell’s patent; and the
Others are too inherently weak to sustain themselves against the
proof the defendants’ own record offers against them.

Stronger still, perhaps, is the fact that in March, 1882, it was
proved as a fact by the New York tests that this case must turn on
the dates ofD and E The defendants did not close their proofs
until more than two years after that. They examined 238 witnesses
after that. " Many persons,” Drawbaugb says, listened at D and E;
no doubt of it; though they knew that this was the crucial point of
the case, only two more could be brought to swear that they ever lis-
tened at D or E before the Bell patent. It would have been better
for the defendants to have omitted them. The one (G. A. May)
absolutely disproved his own date, and proved nothing but his own
stupidity and worthlessness. The other (John Simmons) proved
that he was a liar.

But Drawbaugh himself disposes of these two instruments D and
E. He is not willing to swear that! they were made before rllr.
Bell’s patent, and in eﬂ'ecl admits that they were not.

It will only be after we have found out what the strength the de-
fendants’ reeord, as a whole, has to offer, that we come to the. in-
quiry whether it has enough to carry the burden the nature of this
case gives them to bear, and carry it against the added weight of

our proof.

It will be convenient to group the witnesses : —

The Drawbaugh me'ly.

Daniel Drawbaugh, the claimant, cannot tell whether D and E
were made before Mr. Bell’s patent or not.

A eoneern called the ”Axle Company” was formed to manufacture

.1.” ,5. . r,..,~v,,m.yg.gm wygwwnwmﬁf?“

D AND E. ——THE DRAWBAUGH FAMILY. 457

"Kline’s patent axle.” It consisted of Jacob Kline, the inventor;
Capt. Moore, son-in-law to Kline; Wilson Bear and M. M. Grove.
Daniel Drawbaugh Was their head machinist, and their work was
carried on under his direction at the building called his shop. The
partnership articles are dated Dec. 23, 1874. March, 1875, they
were putting in machinery, and soon after they began to make axles
(defts, i, 363, 641; ii, 702). Feb. 29, 1876, two partners retired,
but the other two, Grove and Capt. Moore, the moneyed man, car-
ried it on for a period which Capt. Moore, the defendants’ witneSs,
“ thinks ” was not less than three nor more than six months. Grove
retired by a paper dated Nov. 18, 1876, and then Moore Wound up
their affairs. They ceased to make axles proper for general sale
about the last of April, 187(i—say April 21 —— (defts, i, (342), but
they carried on the business of putting their patented hearings on
reapers through the grain harvest of 1876. Work of that kind was
certainly done and charged for June 24, 1876 (defts, i, 651), and
later, as the grain harvest is in July, and the blacksmith Fettrow
has a charge of work done for them September, 1876 (defts, i, 363).

On direct examination Capt. Moore said that two partners retired
by a paper dated Feb. 29, 1876; that he and Grove continued the
business; he could not say positively how long, but thought it was
three to six months (defts, i, 641, ans. 6, 7). On cross-examina—
tion he, however, produced the ﬁnal paper of dissolution, which in
fact was dated Nov. 18, 1876, saying that he had torgottrn the date.

The operations of this company, therefore, cover the year before
Mr. Bell’s patent (March 7, 1876), during the whole of which the
defendants allege the existence of D and E, but they alSo cover
six to eight months after his patent.

The best statement which even Drawbaugh can bring himself to
make is that these instruments existed during the time of the Axle
Company. He was directly and leadingly asked by the defendants—
indeed persuasively and argumentatively appealed to upon a rehear-
sal of other men’s recollection—to say that they existed at or about
the time the Axle Company begun, and he declined to assent to this.
His languageis (defts, ii, 827) :——-

" Q. 265. Mr. H-trmon K. Drawhangh, a witness heretofore ex-
amined for defendants, has testiﬁed on p. 579 of defendants’

458 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

printed record, that these instruments, D and E, were made in Jan—
uary or February, 1875, before the Axle Company received its new
machinery in March, 1875: have you any recollection of the fact or
not?

" [Objecled to by Mr. Storrow as leading and lncornpelent.]

"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 I 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; Icztn’l
remember the year or date of it.”

thether they were made in 1875 or in 1876 or later, is to turn
this case; the alleged inventor says that he cannot tell in what year
it was. But what of (L case which requires its promoters to put such
a question to the claimant?

Eight days afterwards the defendants made another attempt.

To every P znnsylvanian the Centennial is an epoch to date from;
it almost takes the place of the beginning'of the Christian era, or the
independence of the United States. For the speaking telephone it is
an era, because it marks the fame of Mr. Bell’s invention. So the
Court wants to know what Drawhaugh will allege of his own work
at that time. The inquiry- ought to be easily answered.

He asserts that F and B talked perfectly well ; the Court knows
that to he untrue; so it will not help the Court to he told by him
when it was that he had what at the time of testifying he is pleased
to assert as operative instruments. What the Court wants to know
is when he had D and E. lVe have had his answer once to that
inquiry, and it was not helpful to the defendants. He is to be asked
it again in a different way, and, without attaching too much impor—
tance to the form in which counsel put questions in a long examina—
tion, it yet does seem that the mode of interrogating the main wit-
ness upon the vital point of the case, in an examination studied so
carefully in the wariness with which inquiries were limited, adds

force to the answers (defts, ii, p. 861) :—

"Q. 400. Had you or had you not invented and made operative
electric speaking telephones prior to the time of the opening of the
Centennial Exposition?

”A. Yes, sir, I bad.”

This was one of those questions Which are always incompetent and
unmeaning, because they involve the decision which the Court is to

. v» >sr.;~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.

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.

the<e instruments were made about the time the Axle Company be-
gan (v. p. 458, supra). Yet, according to Fettrow, he used them
While the machinery was going in.

Fettrov as a witness is discredited by the statement he is made to
swear to on direct examination about the money relations of himself
and Drawbaugh, shown by the production of his own account book to
be absolutely false in the features which are presented as, and which
are the only features substantially material (v. p. 353, supra).

His testimony, putting 1875 — eight years after the date alleged
for speaking instruments ———as the ﬁtst time when he saw one or was
spoken to about one by Drawbaugh, though they lived all these
years under the same roof, is enough to discredit the defendants"
whole story.

No. 49. E. R. Holst'nger, (lofts, i, 377; app. 103. — Already
enumerated p. 409, supra. He was constantly at Drawbaugh’s shop
from 1873 until Dec. 1, 1876. The time when he saw any instru—
ment Within these limits rests purely on his memory, without any
pretence of aid. According to his story, his chief occupation at the
shop was aiding the claimant to experiment. He says that he ﬁrst
saw .1) and E in " the summer” of 1575.

That means at best a vague memory of dates, because if the de-
fendants’ story be true, so intimate a friend and visitor would have
seen them earlier. He is discredited about D and E. He swears he
saw Daniel Drawbangh " make” them, and hints at no other work-
man; Harmon swears that he made them, with some very small help
from his uncle Daniel (V. app. 177).

Holsinger is also discredited by his assertion, that he heard good
speech, and sounds more diﬂicnlt than speech transmitted through F
and B, and that he knows of nothing Drawbaugh was working on
while he lived there except the talking machine and the magneto key.
Compared with what the Court knows to be the actual facts about F
and B, and with the occupations stated by Drawbangh, this testimony
from Holsinger is due at best to a wild and reckless imagination. It
is absolutely untrue. And his contemporaneous publications in the
newspaper, and otherwise, about Drawbaugh’s inventions and occu—
pations, together with the conduct of himself and Drawbangh at the

time, give the lie to his story in the most unequivocal manner.

THOSE WHO ALLEGE SPEECH THROUGH D AND E. 473

It is professed recollections years afterwards against contempo-
raneous print. (See for these pp. 199, 200, supra, and appendix,
p. 102.) ‘

These are all the witnesses in chief, out of one hundred and
twenty eight called by the defence, who pretend to have heard
through D and E before the date of our patent,—six witnesses,
Harmon K. Drawbaugh, W. H. Decker, Jere Fry, Millard, D. Fet—
trow, Holsinger,—-iudeed Fry heard only song and not speech, and
Decker heard them the year before they were made.

This number does not include the claimant Daniel Drawhaugh,
who will not say in what year they were made (v. p. 458, supra).

It does not include any workman at the shop, unless it be the
nephew, Harmon Drawbaugh.

It does not include either of the partners of the Axle Company
who carried on business there from March, 1875, to September,
1876, ——a year before our patent and six months after.

In short these six depositions, pitifully lacking in the elements of
reliability both as to facts and as to dates, are even in number so
far below What such instruments should produce that a record of
one hundred and twenty-eight witnesses which contains them only,
and shows that the important persons above named cannot testify
to them, amounts to a substantial diSproof of their existence at the
important period. The deposition of Springer in the same record,
With the confession of Drawbaugh, was positive disproof. Then the
New York tests ((1. v. p. 162, supra) demonstrated that the defence
must fail unless they could establish the alleged date and the iden-
tity or unchanged condition ot'D and E. We then introduced the
powerful proof of Drawbaugh’s history and surroundings, and his
statements in print and oral tha the had no speaking telephone
before Mr. Bell.

After these proofs in reply, the defendants began again, and took
two hundred and thirty~cight depositions, closing about two years
after their depositions in chief. They did not pretend to conﬁne
themselves to technical rebuttal, but put out a drag net for every-
thing they thought would help. Out of these two hundred and
thirty-eight depositions there are only two from men who pretend to
speech through D and E before Mr. Bell’s patent.

474 BRIEF FOR COMPLAINANTS 0N FINAL HEARING.

Standard Measuring Co. v. Teague, 15 Fed. Rep. 390. GRAY
and LOWELL, JJ. “ It appears from the absence of testimony which
would not fail to be produced, it" it could he found, that this inven-
tion was wholly new.”

Those two men are so unblushing in their mingled stupidity and
eﬁ'rontery that they can touch no case without deﬁling it. They
are Simmons and George A. May.

No. 204. John Simmons, defts, iii, surbtl, 427; app. 569. —
Already_ enumerated and considered, p. 437, supra. Lived in
Cumberland County, near Eberly’s Mills, since the spring of 1875,
and at Ehcrly’s Mills since spring of 1876. \Vorkcd for Drawbaugh
& Chellis in Drawhaugh’s shop three or four years, — 1880, 1881,
1882 ; that is, when this suit began and during the first three years
of it. ' c

P. 430. “XA. 26. I heard the people talking about it [this
suit] ; all over the country they were talking about it.”

Has talked with Daniel Drawbaugh about it.

He testiﬁes that last spring he stated to the complainants’ repre-
sentative that he knew nothing about the telephone. He now testi—
ﬁes, in a deposition very bad in other ways, that he and Jacob Evans
together heard Drawbaugh talk through D and E in November,
1875. but that he never mentioned this alleged incident to any one
until he mentioned it to the defendcmts7 counsel on the morning when
he gave his deposition, Dec. 3, 1883, though he worked for the
claimant and the defendant Uhellis during three years of this suit.
It is a fact shown by the defendants’ proof and conduct that neither
Evans nor Drawbaugh have the slightest recollection of this alleged
incident (v. app. 569).

Tue course of the testimony in November, 1883, —- talked about
in the community, ——Was enough to give the witness an idea that
there was a demand for testimony of talk through D and E with
Jacob Evans, and he volunteered to supply it.

His deposition is fully examined in the appendix, and on p. 437,
supra.

No. 285. George A. May, defts, iii, surbtl, 982, app. 679.—
Laborer ; haslived at Eberly’s Mills ever since Christmas, 1874; mar-

THOSE WHO ALLEGE SPEECH THROUGH D AND E. 475

ried April, 1879, to the daughter of the defendants’ witness, Fettrow,
in whose house he has lived ever since. During the pcndency of' this
suit his occupation has been laboring, chieﬂy for several of the de-
fendants’ witnesses. 'The four years” talk (he testified March 3,
1884) has taught him also. He swears that he saw talking machines
at the shop only once in his life; that it was in March, 1875; that
he then talked through D and E, and he knows that it was at that
time for the excellem reason that he took a razor to be sharpened,
and professes to recollect that he took it to Drawbaugh at a house
which the latter moved away from in April, 1876.

”About two years before he testiﬁed he was interviewed, as of
Course he would be, living in the village. “ Dan asked me whether
I didn’t mind the time he showed a talking machine to me in 1875”
(x-ans. 140, p. 994). What he anSWered to this leading suggestive
and instructive inquiry he does not state, but they did not call him.
Plainly another " revived memory.”

When Dan was training his witnesses in 1882, he asked this
" laborer” to remember that in 1875 — seven years before —-— he had
shown him a talking machine, thereby exhibiting a most acute mem-
cry (or sense of need of’ such a witness), when it is considered that
his story is that for many years he was exhibiting his machines
to great numbers of other laborers and loafers. At that time
Dan was under great necessity to prove D and E in 1875, and he
ﬁnally got this man after ten years’ delay to swear to it. With
this acute memory not only that he had made D and E in 1875, but
had shown them to an ignorant laborer, Dan came on the stand
himself under the greatest stress to prove D and E in 1875, and
what did he dare to swear about it then, after his own witness,
Springer, had destroyed the story by swearing that it was in 1876
that they were made, and he was urged to deny it? Here is his
answer: “ It has been quite a long time ago; I can’t remember the
year art/1e date of it” (D 2, p. 827). And on the same page he
was told that H—the Blake transmitter—had been seen by wit-
nesses in 1876, and asked to afﬁrm their statements. He said, “I
paid no attention to the time; it has slipped my memory ” (app. 269).
When he is procuring an ignorant farm laborer to ﬁx a day and hour
seven years before, he is ready to put into their minds times and

476 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

circumstances exactly, and they are to take the consequences of
swearing falsely. VVheu he has to face those consequences his mem-
ory has all disappeared. He should have had the courage at least
to do what he procured others to do.

He was asked to point out what instruments he saw 011 this only
visit. He selected D, E and H, and said that H was fastened to the
wall. The earliest date even alleged for H is the summer of 1876.
That of course ends him as a witness for 1875.

The rest of his deposition shows that he is of the dulness out of
which such witnesses can he manufactured, — perhaps manufacture
themselves under the inﬂuence of their environment, —hut they are
not worth the making or the having.

No. 141. Jacob Evans, dcfts, iii, surhtl. 88; app. 562—580.-
He lived at Eherly’s Mills until this suit had been pending six
months. His wife has kept up her acquaintance since, frequently
visiting the Drawhaugh family and others. He was visited by Draw-
baugh in 1881; the instruments shown him; he remembered none,
and had never heard of the thing till a late day. He testiﬁed to
that effect for the complainants very positively in January, 1883;
his wife also expected to testify, and was summoned, but was sick
and could not come. In October, 1883, he, his wife, his two sisters
and his brother testiﬁed that they went to the shop together in
December, 1875; some, but not all of them, say that Jacob then
listened at the talking machine, but none of the others took the
trouble to, though they spent a whole Sunday forcnoon there merely
for amusement, and Drawhaugh apparently devoted himself to
entertaining them. He does not pretend to say what he talked
through; he had testiﬁed that he had never seen any of the exhibits,
and was not asked again whether he had. The three women say
that they saw D and others; no one states what Jacob listened at.
Actually, therefore, he does not testify to any use of D or E.

Their cross-examination and the facts proved about them leave
the Evans family a worthless lot of witnesses, both as to facts and
dates (v. p. 434, supra).

Thus six Witnesses in chief allege that they heard through D and
E before the date of the Bell patent. Simmons and May hardly add

»- _ . .A, . . A. . . tP--~~—~ ”‘Vi'ivWny'vv‘?rﬂrﬂf’ri‘“'_-‘

THOSE WHO ALLEGE SPEECH THROUGH D AND E. 477

to the number; indeed the preéence of two such witnesses, so pro-
cured, as all that can be got in two years’ search, and in a supple—
mental record of two hundred and thirtyeight witnesses, is a damage
to character and a confession that the world only holds seven men
who will pretend to support the crucial point of the case. Sue/t in-
struments as l) and E, before telephones were heard of, would have
produced more effect. On these eight men, such as they are, sub-
stantially the defence must rest. Seven men, and the claimant
Drawbangh is not one of them. Is there any support for them?

THOSE WHO SAY THAT THEY SAW D OR E BUT DID NOT HEAR.

We now propose to state sumn arily the testimony of those wit-
nesses for the defence, who assert that at various times before the
date of the Bell patent they saw either D or E, but never talked
through them. Such witnesses come before a Court discredited by
that very fact, for it is not conceivable if pains and trouble were
taken to exhibit D and E, and talk about them, that the persons
would not have talked through them. They were always ready, re—
quired no battery, no adjustment, and if they were what they are
now, a couple of men able to hear anything through any of Draw—
bangh’s telephones could have heard through these. If believed,
they only prove one branch of the case; they cannot identify, for
they have only seen the outside of the casket. \Ve begin with some
witnesses for the defence, who have sworn that they saw these in-
struments a year or two before they were made.

The time which the defendants allege for the origin of D and E is
January or February, 1875, when, they say, Harmon Drawbaugh
made them. The passages in the testimony which explicitly show
that this is the ground they take are collected, p. 143, supra, and
their statement of what they intend to contend that the evidence
proves is summed up by the defendants’ counsel in a question which
he put to Drawbaugh on the redirect examination. near the close of
their testimony in chief (defts, ii, p. 1095) :—

‘Q. 1611. The little magneto machines D and E, ifI understand

you and other Witnesses, were made about the time when the Axle
Company commenced operations,” etc.

478 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

No. 36. Rufus If. Shiremcm, defts, i, 271; app. 79.——Already
enumerated and considered, p. 393, supra. He says that at a time,
which, according to his calculation, is the fall of 1872, he ﬁrst saw ‘
at Drawbaugh’s shop B and F, which, Drawhaugh told him belonged
to the talking machine ; did not speak through them. He says that
about three, not more than four, months afterwards (ans. 17, p. 272),
he made a second visit to Drawbaugh’s shop and saw 13 and F and other
talking machines. He then listened at an instrument which he can—
not identify; it certainly was not D, or E, or A, for he identiﬁes
them; and the one he says he listened at was " fastened against the
north wall of the building; I was standing” (ans. 25, p. 273). Has
been there since up to the present year, but cannot say how otten.
At later visits has seen various machines, -—-E, A, I, D. So the de-
fendants produced him asa man who could identify D and E, but they
did not ask him when lzeﬁrst saw them. We did. P. 277, X Q. 69,
we asked him what he saw at the time of his second visit, which was
not more than four months after the fall of 1872, and thereupon he

picks out four, and swears that he saw A, D, and I. There is not a

pretence that A existed in 1873, nor that D or E existed even in 1874;
and the assertion of defendants’ counsel just quoted, — that he wishes
it to be understood that their witnesses prove that D and E were made
about February, 1875, —shows that the defendants did not believe
this witness, and did not wish the Court to believe him. We have
already shown (1). 393, supra) this witness’s testimony about the
other instruments to be absolutely false. Never used them.

No. 58. Daniel Rupp, defts, i, 446; app. 121.—-—It has
already been shown that he is a witness who, taken for what
he says, is destructive of three quarters of the defendants’ story,
because, although he had constant business at the shop as treasurer-
of the Mill Bush Company and otherwise, he swears that he never
saw a talking machine until seven years after the time when
the defendants assert that they were known to everybody (V. p.
257, supra). He says that he ﬁrst saw them in June or July,
1874 (ans. 5, p. 446). He would not positively identify any
particular speciﬁc instrument, but says that what he saw Were some
having a mouthpiece like 0; seine with curled irons like the magnet

THOSE WHO SAY THEY SAW D AND E. 479

on D, —something_,r of that shape. His testimony is not very
explicit whether he means tllat he saw these at the visit in 1874;
but if he does not mean that, then he nowhere gives any date for it;
it" he does mean that, he has only stated what the defendants have
asked the Court not to believe, for they assert that they were not
made before 1875. It is certain that he did not see the " curled
magnet” of D at any early date, for it then had a cover (v. p. 471,
supra). Never used them.

It is shown, by the consideration of his testimony in the appendix,
p. 123, that he is a worthless witness, either as to identifying instru—
ments or as to dates, or both, because, if his testimony about H
amounts to anything, it is a statement that he saw it at least tivo
years before the defendants allege it was made. So he is altogether
too early for the only machines he even attempts to identity even
the outside of.

No. 53. Jacob 8. 8720101), defts, i, 405; app. 110.—He says
that he saw D and E, but never talked through them. Thinks it
was either “1874 or 1875.” Has nothing to ﬁx it by. Evidently
the defendants’ counsel, from the tenor of his examination, thought
he was going to prove the date by getting the Witness to swear that
he had a pump ﬁxed at that time, but the witness said that he did
not. Too vague to establish a (late.

IV. 11. Decker, p. 469, says that he saw and heard D in 1874.

These pre—adamite depositions are certainly false, but they are
important, because they show the unreliability in inquiries of this
kind of the testimony of such men as the defendants produce, when
not supported by written records or by associations necessary, and
independent of mere memory, connecting them beyond the possi-
bility of mistake with circumstances as to the dates of which there

can be no doubt.

C’urletl magnet of D.——The witneSs' Decker pretends that he
identiﬁes D by the curled magnet. {app identiﬁed D by the curled
magnet. So did Fettrow, Henry Drawbaugh, Balsley, Updegratl',
Decker, and others. We have already called the attention of the Court

480 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

to the fact that it is not possible that the curled magnet was visible
during the ﬁrst year of the existence of that marhiue, because it was
originally covered with a woollen cover like that now on E (v. p. 143,
471, supra). Any witness who, during the ﬁrst year or two alleged
for its existence, or as s one do within the first two months pretend
to have seen this magnet and to thus identify the instrument, is sim-
ply uttering a romance, — telling what he never saw.

N0. 10. Jacob B. Fry, defts, i, 102; app. 37.—Age, twenty;
laborer. His father moved to Eberly’s Mills in April, 1875, and
kept store at intervals until 1880. At the period the defendants
want to prove by him (1875) he was fourteen years oltl. He says
that he ﬁrst went to the shop “ several months” after he moved
there, —" it must have been the latter part of May or June, 1875;
I amuuable to say or give the Correct time”; that afterwards, and at
a time when the weather was warm enough to go home at noon in
shirt- sleeves (ans. 17, 18), he worked a week or tWo for Harmon K.
Drawbaugh (ans. 15), helping him on the patent axles (x-ans. 64).

From that-time until 1880 he was at the shop “ frequently”; in
1876—7—8—9 “ sometimes as high as twice a day, sometimes once a
week maybe” (X-ans. 80). Saw talking machines nearly eveiy time
he was there (ans. 42—7). Plainly his power of ﬁxing a (late by
mere memory (and he pretmds to nothing better) must be Vt'l‘y
weak. He does not pretend to even name a date to ‘ any except D
and E; says that he has no id at about dates for the othets. His
memory, on eros:—examination, is shown to be worthless as to
everything.

But he is sure that he did not talk through any instruments while
the "axle factory” was going on (ans. 59, quoted infra.) ; that con-
tinued until much after the date of the Bell patent; and he saw no
wires ”outside the shop” until 1879, as near as he can remember
(ans. 51). That is fatal to the outside line alleged to have been
talked over by O. Kahney in August, 1875. All this on dirert ex—

amination. He says that while working for Harmon Drawbaugh
(which he apparently thinks was in 1875, but which really was in
1876) he saw two talking machines, " round, with a curled magnet

in them, as I recollect.”

THOSE WHO SAY THEY SAW D AND E. 481

"Q. 26. What other instruments did you see at that time or be—

fore that time? Did you see this instrument, B ; or this, F; or this,
A?

“A. No, sir; not that I remember of.”

He was not asked about 0 and I; it is plain, therefore (as no
others are pretended before D and E) that all that he means to testify
to (whatever he the true date) are D and E.

Next, as to their condition (1). 107) :—

"Q. 60. Was the axle factory running when you ﬁrst saw the
instruments D and E? ‘ ,

"A. I saw them whilst the axle factory was gomg on, lying on
the work bench together and a pile. _ ,

”Q. 61. Explain what you mean by ‘together and a pile.

“A. There is where I saw that curled magnet; the one was'to-
gether like this (pointing to E), and the other was like this (point-
ing to D); this part was off (pointing to bottom); they was all
lying together on the bench.” ,

So D and E were making, not made, when he saw them, for Draw-
baugh expressly testiﬁes that, once made, they were never altered
except by a slight change in the woodwork of D. This does not at
all agree with the story of Harmon that heﬁm’s/Led them before the
Axle Company began, in March, 1875 ; and Fry cannot be mistaken
about his further limit, as he did not move there until April, 1875.

Talk—He does not anywhere say when he ﬁrst heard talk through
a machine.

Referring to the time when he worked for Harmon Drawbaugh he
says (p. 104):—

“Q. 24. Did you hear talking carried on through those two
instruments [D and E] at that time?

"A. I heard talking through instruments, hutean’t say whether
those at that time; I heard talking through those since.”

As he did not see any others (v. ans. 26, above quoted), this means
that he heard no talk then. Evidently the defendants’ counsel took
and wanted to take that view of the answer, for the defendants did
not want Drawhaugh using F or B in midsummer, 1875. So the
next question was : ——

”Q. 25. But you saw those two instruments [D, E] at that time ;
is that your meaning?

"A. Yes, sir.”

482 ’ BRIEF FOR COMI’LAINANTS ON FINAL HEARING.

This is presently made certain.

"Q. 59. Do you remember talking through any of the instru—
ments while the axle factory was iunning there?

"A. Not at that time that I remember of.”

Here, then, is a frequenter of the shop, who worked somewhat
during the time of the Axle Company, but never talked then;
and the time of the Axle Company extended several months beyond
our patent. '

He says that he does not remember havingany talk with anybody
about what he heard (x-ans. 90, p. 110) ; either that or the rest of
his deposition is certainly untrue.

He says that when he saw D and E they were in pieces; plainly
they were not finished then, for l‘)rawbauj_rh says that, excepting a
slight change on one, they were never altered after they were made,
and their 1011ch case about them depends upon making t/ze 00117"! be-
lieve Drawbcmgh’s allegation that they have been neither improced
nor altered since they u‘ei‘eﬁrst made.

All his dates about clocks are wrong. Finally, the only fact the
defence rely on to aid the date when he saw D and E in pieces was
when he worked “for Harmon Drawbaugh.” That work, of course,
was when Harmon Drawbaugh was working by contract and not by
the day. The books of the Axle Company show that all Harmon’s
work was by the day up to Nov. 10, 1875; that April 1, 1876, he
was paid for contract work enough to account for about forty days’
labor, and April 21, 1876, was palvl for more contract work (dei'ts, i,
646—7). Weather warm enough for shirt sleeves out doors after
Nov. 10, 1875, could not have been until after Mr. Bell’s patent of

March 7, 1876. Harmon, examined afterward, was not asked to ﬁx

this boy’s date.

Perhaps the witness (lees as well as a dull boy of fourteen with
no memory can be expected to do; but not well enough to be of the
slightest help here.

But his story thus sifted down does not seriously disagree with the
statement of Springer that in April, 1876, D :md E (lid not exist, and
with the statement of Dellinger, that after April, 1876, he saw Draw-
bangh at work on D, and with the other facts and proofs from the
defendants’ record collected pp. 490, ed 8911., infra.

THOSE WHO SAY THEY sAw D AND E. 483

No. 120. O. E. Wdegrqﬁ“, defts, ii, 1119; app. 24:7. —-—This wit—
ness. has already been enumerated and considered, p. 432, supra.
He testiﬁed that he went to Drawbangh’s shop, among other visits,
in April, 1875, when he was on a ﬁshing excursion; that while
there he thinks he talked through some talking machine, but he
cannot identify the one that he .talked through. He says that he
saw D at this time, and professes to recognize it as D by the peculiar
shape of the magnet (ans. 27, p. 1125). It would be about enough
to overthrow his deposition to remember that D is alleged to have
been then not over two months old, and it is not possible that the
bottom cover was lost off as soon as that, and that the instrument
was continually used afterwards with the magnet exposed; it would
have gone to pieces Very soon. The witness’s attempt to ﬁx his
date is by a book ofa livery stable, which he says he‘asked the livery-
stable keeper to look at and tell him about, but did not see himself,
and which no one produces, and a book of his own in which he says
he has an entry of a visit to a certain patient. The dc-fendauts’
counsel examined that book half a dozen times, and then the witness
forgot to produce it on this examination and it has never been
shown.

The witness states that timing that ﬁshing excursion or another
one he made a few days before, he stopped and talked with Zach-
arias, miller at the mill next above Drawbaugh’s. Zacharias, who is
one of the defendants’ witnesses, testiﬁed that he did not go to that
mill until April, 1876, after the Bell patent. The proof about this
is in app. 249.

Smith, eomptnion of Updegraﬂ", brought to support him, says that
they were campedout- all night on this excursion on an island close
to Drawbaugh’s shop, and in the morning went up to the grocery
store and bought some coffee and other provisions. The grocery
store of the village was blown up in January, 1875, and was not
rebuilt until the following winter, so that, in April, 1875, there was
no grocery store there. April, 1876, and subsequently, there was
one (app. 250).

No. 11. Jonathan Balsley, defts, i, 112; app. 38.——-He says
that his wife died the 22d of October, 1875; and soon after, to divert

484 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

his mind, he went to Milltown, where he had formerly lived. Does
not state whether he has been at Drawbaugh’s shop at other times,
nor how much. So far as appears, therefore, he has nothing but an
arbitrary connection resting on memory between his wife’s death and
this palticular visit to the shop. He says that he saw F and D and
E, but (lid not try to talk through any, and that he did not think he
saw any other machinery under consideration except the talking ma-
chine. It is certain that the most prominent object at Drawbangh’s
shop in October and November, 1875, was his large electric clock with
the Works then completed, though the case was not quite ﬁnished ; it
was puffed in the newspaper at- that time. A witness who has been
brought to such a condition of mind that he perfectly remembers
the talking machine, which he did not understand nor use, and has
forgotten all about the electric clock, which made a stir in the com—
munity, has reached an artiﬁcial condition of memory which makes
him worthless.

He professes to have had a good deal of t‘lik with Mr. Drawhaugh
about the machine; they talked it over together; he asked how it
worked, and so on. He says that Drawbaugh put it to his mouth,
and also to his ear, to show how it was to be used, but did not use it.

. It is impossible to Where that so much time should have been spent
talking abontD and E, and that they should not have talked through
them if they had them, because they are instruments which in their
nature, it' they existed then, were always ready for use. He recog-
nizes, as usual, D and E by the magnet at the back of D. No wit-
ne>s 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

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 him<elﬁ Moreover, the
defendants’ story is, that Drawhaugh had been laughed at for years
as a man who tried to make a talking machine. These instruments,
alleged to have ﬁrst appeared during the time of the Axle Company,
must have put an end to all laughter and ridicule, if there had ever
been such. His story is, and the statement in the answer is, that all
that he did he freely, gladly and intentionally exhibited to every—
body, and that the instruments he had, whenever he had them and
Whatever they were, were put in sight of every visitor to his shop.
That is the story offered, and, if there had been a word of truth in
it, Capt. Moore is a man who would have known it all, would have
understood it and would have appreciated it, and could 10-day tell
of it.

Compared with what the story, if true, would make him tell, what
does he say? He had known Drawbaugh since 1870 and lived
within a couple of miles of him. The defendants have called a great
many witnesses merely to state that they had heard this thing spoken
of, but in Capt. Moore’s deposition there is no intimation that he had
ever heard anything of it before he went there in 1875. thile
there, and at a time which, so far as necessary or even probable

504 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

limits are concerned, may have been any day between the early pait
of 1875 and the fall of1t<76 (and therefore after our patent), Draw-
baugh mentioned to him. He says’that Drawbaugh asked him to
go in with him upon it. Then, —

"Q. 20. \Vhile you were connected with the business there, did
Daniel Drawbaugh ever say anything to you about his talking ma-
chine?

"A. Yes.

”Q. 21. Did he show you one of his talking machines?
?( 9’
A. Yes.

“Q. 23. Did he say anything about patenting the machine at that
time; if so, what?

"A. He did; he said that he was unable to procure a patent
himself, and desired me to go in with him and get a patent for it.”

"Q. 29. Did you feel much interest in his talking machine at the
time?

”A. I (lid feel considerable interested in it, and told him if it
could be put to practical use it would be a fortune to any person or
persons who would succeed in bringing it out; I can't remember the
words exactly, but that is about what I said to him.”

In addition, therefore, to the necessary conclusions the Court must
draw from the characte' and relations of the parties, we have the
fact that Drawhaugh spoke to him with a view to inducing him to
take an interest in the matter. In answer to a leading question,
Moore says that at that same conversation Drawbaugh showed him a
talking machine. That is not true in any proper sense. The tilt—

ean instrument B is the most he pretends to have seen. That-is only

pait of an apparatus. He never even saw this attached to a wire.
Still thete can be no doubt that Drawbaugh then made to him under
those circumstances the best exhibit he could on the subject, and
what was it?

” Q. 96. Please look at the machine B, now shown you, and state
whether or not he showed you that machine in connection with that
conversation.

"A. I believe this to be the exact machine which he showed
me, during that conversation.

" 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 something thin, like a bladder, drawn
tightly and tied around it like a drumhead.

i" Q. 225. Do you remember whether or not, while you were eu-

Pnoors AGAINST D AND E.—CAPT. MOORE. 505

gaged in business there, he had other talking machines around in
different parts of the shop?

" A. I never saw any In use; I saw a number of pieces of wood
that were carved out in ditl'erent shapes; [never had any conversa-
tion with him as to their use.” ’

" Q. 30. Did you take interest enough in it to inquire about it
afterwards, or to examine any of the machines that you saw lying
about there?

“A. I observed him frequently working at machinery that I
thought was connected with this Same machine, though put up in
different styles anal different shapes; 1 was not well enough ac—
quainted with his objects at which he was at Work, nor his designs,
at the time, to give an intelligible account of their working, or what
they were for. I made inquiry of him as to the purpose of a 1111-
chine that was ona table in another room, which worked by a magnet,
and pressed certain keys with the alphabet on, but I don’t know the
object of it now. I didn’t examine any one that had reference to
this talking machine.

" Q. 31. Are you able now to identify any oftbe machines that
had reference to this talking machine other than the instrument B,
now lying on the table before you?

"A. I do not think I could recognize any other.”

Thus B was the only instrttnent which he was speciﬁcally asked
about or which the defendants expected him to identity. The Court
will observe that this is the examination of their own witness by the
defending counsel, with the assistance of Drawbaugh. Such ques-
tions as 26, 27, so put to such a man and so answered, under such
circumstances, after, of course, the usual o 'al examination of the
Witness, have all the Weight of a statement by Drawbaugh himself as
Well as by the witness, that during the whole time of the intercourse
between himself and Capt. Moore, all that he showed to Capt. Moore
was the tin-can instrument B with the bladder on, that is, in work-
ing condition. That such was the condition of B was not a chance
remark of Moore’s; it was drawn out by an express, speciﬁc and
indeed leading question. Capt. Vloore never talked or listened at,
or attempted to talk or listen at, or was asked to talk or listen at,
any instrument. He never saw any other instrument in a ﬁnished
state, at any rate, all the time he was there, and will not state
whether the parts he saw Drawbaugh working at belonged to talking
machines or something else. If this were the whole deposition, it
would be—especially considering what we have already learned

506 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

about the instruments (p. 151, supra), and that B did not exist with
a bladder on after the better instruments were made——absolute
proof, out of the defendants’ own record, that during the whole time
of the Axle Company,—that is, demo to a time after Mr. Bell’s
exhibition at Philadelpllia,——B was the best that Drawbaugh had.
That disproves their story and ends their case.

But the deposition is even stronger than that. The defendants

struggled to get Capt. Moore to say that although he had never seen

any instrument except Exhibit B, perhaps he had seen Drawbaugh
making one. This would be unavailing, if true, because the allega-
tion is that D and E Were ﬁnished before Capt. Moore went there.
But the best that Capt. Moore can be coaxed to say is that he saw
Drawbaugh working at something or other that he thought was con-
nected with this machine (ans. 30, quoted supra).

That would never be the case it' there had been such a set of in-
struments there as the magneto instruments and microphones alleged.
But taking that answer in the strongest View, together with the fact
that Drawbaugh was working at a great many electrical contrivances,
it is not even evidence tending to show that he was at Work on a
talking machine.

Again, ans. 29, above quoted, shows that the eHect of whatever
was exhibited and of all that Drawbaugh said to him, on the subject
was, that if it could be put to practical use it would be a fortune. If
Drawbaugh told him what we now know is the truth about B, the
only instrument which he showed him, that it could not really talk,
though perhaps once in a while something that seemed like a word
would get through, this result which Capt. Moore reached in his
own mind, and which he expressed to Drawbaugh without contradic~
lion, would be natural; no such remark could ever have followed the
exhibition of the magnetos D and E; still less the exhibition of the
microphones.

There are two other facts about Capt. Moore’s deposition which
would deprive it of value for the (,iet'endants, but which increase its
value to us. An attempt was made to assign a date to this exhibition
of B. There was nothing whatever to ﬁx it by, and the manner in
which the question was put shows that the defendants knew that
Capt. Moore had no real recollection on the subject of date. After

PROOFS AGAINST D AND E. —CAPT. MOORE. 507

asking whether it was “while connected in business there ” (Int. 21,
supra),—a question which at least extends until the final dissolution
of this ﬁrm, in November, 187G,—they put the next question :—

" Q. 22. About when was it, as near as you can remember, that he

ﬁrst showed you his talking machine?
"A. It was during the month 0t May, 1875.”

Under the circumstances, the Court may Well take that as an
assertion that it was during the time of the Axle Cotnpuiy, but
there is not enough in that answer, with the greatest respect for
Capt. Moore, to justify the Court in believing that even B was
exhibited to him before the date of the Bell patent. Further on in
his deposition, Capt. Moore informs the Court that he saw there
other machines not talking machines; and it is plain that he has
mixed up several (see ans. 30, already quoted). It is plain from
that that he saw the dial telegraph, and that he saw a machine in
which the prominent thing was a magnet. The dial telegraph
worked by a magnet, but it was concealed inside of a cylinder;
the magneto key Worked by a large horseshoe magnet, which was
the most prominent object in the contrivance.

Then Capt. Moore made two more answers: —

"Q. 25. At that conversation with Mr. Drawbaugh did he or not
suggest any particular line of business in which he thought the talk-
ing machine Could be introduced?

"A. He spoke of the use of it in cities to supersede the ﬁre alarm
which existed at that day.”

"Q. 32. \Vhen Drawbaugh spoke Of using the talking machine
as a substitute for the ﬁrm alarm telegraph, did he state how he
thought of using the machine, — whether by batteries, or by magneto
electricity?

“A. He spoke of using it, as this was used, by an electro-mag—
net; this is the expression I understood him to use.”

These answers mean that he saw at least a machine which Draw-
baugh intended to supersede the ﬁre alarm in cities, and that it was
a machine which worked not by a battery but by magneto electri-
city as di~tinguished from a battery. B worked by a battery and
not by magneto electricity; no one could possibly speak of the ﬁre
alarm as a use to which a speaking telephone could be applied.
But Drawbaugh did have at that time his magneto key which

508 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Worked, not by a battery, but by magneto electricity, and which
he did intend to use instead of the existing apparatus on ﬁre
alarms. \Ve knew this to be the fact, because he carried it to

Mr. Keifer, who had constructed the Harrisburg ﬁre alarm, aul

asked him if he could not use it for that purpose. Keifer so testi-
ﬁed (p. 273, supra), and he advertised it in his printed advertising
card as a'coutrivauce which was intended to be used on tire alarms
(p. 199, supra). The evident confusion of two things which Capt.
Moore has fallen into Would deprive his deposition of any weight
in favor of the defendants, but it gives it additional signiﬁcance
against them. If, as we think, at some late day during the period
of the Axle Company, and in the fall of 1876, Drawbaugh showed
him B (he never saw F), and told him of the worthless results
which he could get with it, it is entirely natural that hearing
from Drawbaugh a great thtl mire about the magneto key, that
should have been the chief thing tll‘tt remained in his mind, and the
two become mixed. But it is impossible to believe that any man
of Moore’s education, intelligence and evident thoughtfulness could
have fallen into such forgetfuluess or confusion, if he had seen
only the practical and highly organized and ﬁnished magaetos alrl
microphones D and E, or still more. if he had seen D and E, L,
K, G, O and H, as he would have if they had existed before the fall
of 1876; for, if the del'endan-s’ story be true, these astonishing
instruments were exhibited to every one, and they were kept on the
second ﬂoor where all the Axle Company’s business was carried on.

The whole proof from Capt. Vloore may be summed up in a few
Words. The whole story is, that while he Was there, Drawhaugh
had, and showed freely to everybody, and made known to the com-
munity, the existence of the in~trumcnts D, E, L, K, Gr and H,
which are really p ‘aclical telephones. The fact is that Capt. Moore
never saw them, and has not the slightest recollection of anything
of the kind, or of any instrument capable of practical use. Not
only that, but the manner in which he was interrogated, shows that
Drawbaugh knows perfectly well that all that he eversho wed to Capt.
Moore, and, consequently all that he ever had to show to him during
that period, was the instrument B, then in working order with the
bladder on.

PROOFS AGAstT D AND E.——AXLE 00. 509

The other members of the Axle Company are men of less intelli-
gence and less education than Capt. Moore; but their testimony, less
striking for that reason, is equally inconsistent with, and, therefore,
equally disapproves the existence of any practical instruments while
they were concerned there. It is as follows : ——

'No. 101. Wilson Bear, defts, i, 663; app. 215.—Member of the
Axle Company. He testiﬁes that he saw A in the fall of 1874. He
does not remember any other instrument ; he never tried one, and
about all he could do is to prove that he is brought into the credulous
state of mind that belongs to the neighborhood. He was talked
into acondition Where he assumes the existence of a telephone as a
thing established. He says, "I have no doubt, as Mr. Drawbaugh
has explained to me often about his inventions, that he spoke of
his talking machine” (ans. 9, p. 665).

No. 106. Michael 1V. Grove, detts, i, 69l ; app. 226.——Member
of the Axle Company. Says that Drawhaugh once showed him a
kind of box arrangement; and he rather thought that this was in
the spring ot'1875 ; he never talked through any, and under an out-
rageous system of leading questions was induced to assent to the
proposition stated in the question that the instruments he saw were
A and D; that is all he knows. He showed himself on cross—exam-
ination to be a man of worthless memory about facts and dates in
his own subsequent history. The value of his deposition rests en-
tirely on dates, and the attempt of the defendants to make out that
he was not there after February, 1876. This is certainly untrue,
for Feb. 29, 1876, was the date of a paper by which two of the ﬁlm
retired, but Grove agreed to remain; the paper by which he retired
is dated Nov. 18, 1876. He also testiﬁed (defts, i, 693) : —

“X Q. 17. Do you feel quite sure that you have never been at
Drawbaugh’s shop since February, 1876 '3

“A. Iclon’l recollect l/ze dates when [was there.”

The man of the Axle Company who ought to know most alinit it
is Jacob Kline, the inventor of the axle, father—in—law and next—door
neighbor of Capt. Moore. He has not been called, but the defend-
ants proved upon tho cross-examiuttion of one of our witnesses
(Theophilus lVeaver, complts, i, 448, x-ans. 409) that he went to

4-,...L-yyqan4' , ' ' “ ‘ ‘

510 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

Kline on the subject, and Kline knew nothing about it. That is
enough for us, especially considering the relations which Kline had
to the claimant, and with Capt Moore, his sou—in—law, and with
Henry N. Bowman, justice of the peace, extensively employed by
the det'endants in this case to take afﬁdavits, another son-in-«law of

Monte. It' Kline knew anything, they should have and would have

called him (p. 266, supra).

The defendants also called Henry IV. Bowman to testify to an
isolated date or fact, but asked him nothing about telephone. If the
father-in-law and brother—in-law had known about this talking ma.-
ehine during the time of the Axle Company, be, living in the same
village, Would certainly have known of it; but he was not asked on
the subject.

Tlaeopln'lus Weaver, complainants’ witness (complts, i, 377, pp.
260, 280, 295, supra), was the patent solicitor for the Axle Com—
pany, reissued a patent for them and took testimony in an interfer-
ence, was at the shop a number of times about it, and at one time
took an inventory of all their property there in March, 1876. He .
testiﬁed positively that he knew nothing about it. (see his deposi—
tion, complts, i, 377, app. 38], particularly p. 388; p. 280, supra).

Mr. Weaver proves one incident which, although not more per-
suasive than the proof otfered by the whole period of the Axle Com-
pany, is more striking. About the lst of March, 1876, the week
when Mr. Bell’s patent came out, Mr. Weaver went to the shop with
all the members of the Axle Company to take an inventory of their
property, which he then contemplated purchasing. They spent two
days at it. One morning he and one of the partners arrived before
the rest, but waited for them an hour or two, while Drawbangh
occupied their time by talking to them and showing them his various
contrivances. If his story be true, he then had had for a year at
least one pair of good speaking telephones, D and E, and must have
had ﬁnished or about ﬁnished the microphones L, M, G and 0. It
is not within the bounds of human possibility that these two days
could have been so passed without Mr. \Veaver and the partners
who were with him knowing and seeing and using some of these

PROOFS AGAINST D AND E.—AXLE co. 511

talking machines. Yet the undisputed fact is, that none of them
ever did.

There were three men who worked for the Axle Company for a
few days when they were putting in their machinery.

N0. 108. John FVolf, defts, ii, 701; app. 229.—-Seventy-ﬁve
years old. Teaming for the Axle Company; in the spring he, ac-
cording to his story, saw more telephones than all the members of
the Axle Company put together. Says that he saw B and C and A,
but cannot recollect seeing D and E. He was the defendants’ wit-
ness.

No. 169. Augustus Kabneyl, defts, iii, snrbtl, 254; app. 613,
p. 299, supra. — Defendants’ witness; laborer. He testiﬁed that he
worked about ten days for the Axle Company, putting in their ma-
chinery, and saw A and E. It turned out that when the defendants
were taking their testimony in chief, they visited him twice and he
knew nothing about telephones. He testiﬁed that six months before
‘ he testiﬁed he saw one of the complainants’ representatives and told
him that he worked for the Axle Company for about ten days, and
was perfectly sure that he saw no telephones there, and that there
Were none at that time, and that he ﬁrst saw them when he lived at a
paiticular farm in 1879; and not only stated this, but it was written
out and he signed it. On the witness stand he admits that that was
the condition of his memory at the time, but afterwards it was
brought to his mind that during all these interviews by both sides,
and during three years of this controversy, his recollection had been
wrong, and he now remembered seeing the instruments.

Such testimony, even if one could believe that he now deposed

from an honest memory, is not consistent with the existence ofD and
E. Plainly, however, his true memory of four years ago was that
they (lid not exist.

No. 135. John Ifalmey, complts, iii, 2034; app. 465—7 and 616.
—He was a witness of uncommon strength and precision of memory.
He Worked about a d-ty for the Axle Company, putting in their ma—
chinery, when his son Augustus did, but was quite intimate in the I

512 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

shop up to April, 1875, and somewhat afterwards, though not so

much. He is perfectly sure that he neither saw nor heard of any
telephone there until a very late period, and distinctly remembers
reading in the newspaper about the Bell telephone, and knowing that
it was an entire novelty, and nothing of the sort had been heard of by
him before. He was called by the complainants (p. 299, supra).

The case about 0 and E brieﬂy 2's: —

If his story be true, and if the instruments when made were what
they are now, they marked an epoch in his career; they were alleged
to have been the culmination of eight years of unceasing labor and
anxiety; yet they made no impression whatever upon any member
of his family (whatever be the true date), unless it be upon his
nephew Harmon.

They must have affected everybody who saw them, and every one
who took the trouble to look at them and talk about them Would
have talked through them; yet, only eight men pretend — not
over ﬁve in good faith pretend—that they talked through them
during the year befOre Mr. Bell’s patent.

Drawbaugh’s shop, during that time, was occupied by the Axle
Company, for Whom he was foreman. It is asserted that he spoke to
all the members of the company about attempts to transmit speech,
yet none of them ever attempted to talk through any instrument, and
only one—Grove, a man of peculiar stupidity can be got to im-
agine that he suspects that he ever saw anything like D or E. He
has no way, direct or indirect, of fixing a date. The most intelli—
gent of the party, Capt. Moore, thinks he saw B, the tin—can instru—
ment, only; and the exhibition of that under the circumstances
stated disproves the existence or" D and E at the time.

The business of the Axle Company brought Drawbaugh during
that year in rather frequent and intimate contact with Theophilus
“'eaver, patent solicitor of Harrisburg, an old friend of Drawbaugh,
then carrying on a controversy for the Axle Company, but he never
spoke to “Teaver about it.

It is a part of the story, which the defendants tell for Drawbaugh,
that he always felt and declared that the telephone was an invention
of great value, and would give him his fortune if he could only pat-

SUMMARY OF PROOFS ABOUT D AND E. 513

eat it, and that the only reason why he did not patent it was his
inability to raise $60 by himself or his friends.

His ﬁrst knowledge of Mr. Bell was by hearing of 'Mr. Bell’s ex-
hibition of June 25, 1876, at the Centennial. If the story the
defendants undertake to make the Court believe be true, he had then
had D and E sixteen months, and had completed the finished micro-
phones L, M, G. 0. During all that time he owned a double house.
During those sixteen months he received from the Axle Company,
for his year’s wages, $440, of which $120 was paid him April 1,
1876. He had during that year $110 from Feltrow as rent, of
which $50 was paid about April 1, 1876. On May 1, 1876, he
received from the Faucet Company $51 on a ﬁnal settlement. Dur—
ing that time $600 came in. In addition, he bargained to sell his
house in the summer of 1875, and from the purchaser received ad—
vances of $125, and might doubtless have had more; but he used no
money for telephones.

He found himself, so it is alleged, in spite of this money, too poor
to-even caveat the telephone, or make a few pairs for sale ; but dur— ‘
ing this important year he found means and leisure to complete an
electric clock, which he declared he would exhibit at the Centennial.
He yearned for publicity; in the fall of 1875 his friend Holsinger
wrote in the newspapers about him and his works, but could only
mention the clock and the axles ; while Drawbaugh himself could not
exhibit any telephone to his friends, the electricians Keifer and VVil-
son, nor to his friend the patent solicitor \Veaver, with whom he was
then in frequent intercourse at Harrisburg and at the shop. Exhibit
a telephone? VVea‘Ier spent two days taking an inventory of property
in the shop in March, 1876, and if Drawbaugh had had a speaking
telephone he could not have concealed it.

1876. If he had had, when he heard of Mr. Bell in the summer of
this year, D and E, or the microphones which he pretends, it is im-
possible that he could have behaved as he did. It is impossible to

doubt that Holsinger, writing for the newspapers in the fall of that

year, would have mentioned it. If he had had them it is impossible
to believe. that he could have talked about the telephone with
Shapl’ey, shown him nothing but the tin can B, never intimated that
he was the originator of the telephone, and then asked Shapley to

514 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

put his money in the clock, saying nothing abouta telephone to him.
The actual exhibition and use of the tin—can instrument B as the
best thing he made during the one or two years after the time when
they allege D and E were made is absolutely proved by Springer
and by Moore, and Diawbaugh, on the stand afterwards, did not: at-
tempt to deny it. It is also proved by Shapley and Landis and
Rupp, and Drawbaugh did not venture to go on the stand to deny it.
That is a fact which disproves their story. The statements which
Drawbaugh made during these years, as well as his course of con-
duct, and particularly the statements and occurrences upon the cross—
examination of David Hauek and himself, and the declarations and
statements of Dr. Moﬂitt, make it impossrble to believe that he had
a speaking telephone at the time he first heard of Mr. Bell.

In 1878 he knew who was the ﬁrst inventor. Yet then, when the
telephone had become of great importance in the world, and when
his memory was fresh, he declared to several different persons that
he had no standing as the inventor against Bell. He did not put it
on a nice question of dates. He asserted for himself early experi-
ments (whatever that may mean), but said that he never got any
results. All these persons acted on his statements, and one, six

months atterwards, in a laudatory newspaper article about Draw-

baugh, repeated those statements in print eighteen months before
the present claim was made, — before Drawbaugh had offered to him
$5,000 in cash and untold further contingencies in stock if he would
contradict what he had formerly often said, and would now know
what he had formerly declared he did not know.

In the early fall of 1878 he had prepared and published a fulsome
biography of himself; it claimed many things for him, but did not
assert him to be the inventor of the speaking telephone (1). 222,
supra).

In the fall of 1878 the most active of these defendants, a resident
of Harrisburg, about to become a partner of Drawbaugh to get a
patent for a molasses faucet, and one of their most conspicuous
witnesses who knew the truth of the matter, determined that he
could not antedate Bell (p.231, supra).

In 1879, he, his brother and a shop companion (D. A. Ha‘uck)
had occasion to state under oath what inventions, if any, he had

DISPROOF OF ANY SPEAKING TELEPHONE. 515

made which showed originality and had been reduced to practice so
as to work satisfactorily. A number were named, but the telephone
was not among them (p. 226, supra).

In the spring of 1882, the New York tests de‘nonstrated that the
defendants could not stand on anything except D and E; their dates
became the turning point. In the spring of 1883 we showed them
by Mr. Pope’s deposition that We should take that ground. The
proof for them was excessively weak at best. The defendants did
not close their case until June, 1884, and called two hundred and
thirtyeight witnesses after the spring of 1883. With all this exer—
tion they could only ﬁnd two men to swear to speech through D and
E before the summer of 1876. They were G. A. May and John
Simmons. Both had lived in the village for years, and had been
talked with early in the case; one of them, Simmons, has been in
the employ of the defendants all through this suit. bIay’s own dep-
osition proved that his supposed visit was after the summer of 1876 ;
Simmons proved that he was merely a liar. Such endeavors, with
such results, are a confession.

In 1880, when Mr. Bell had 100,000 instruments in use, Draw-
baugh’s claim is ﬁrst presented to the public as substantially the sole
basis for a share capital of $5,000,000, to be made good, not by using
his telephones, but by compelling the Bell Company to pay "a mu-
niﬁcent royalty,” and as a defence for a company of infringers (p.
234, supra).

All these are facts. Mostly found in the defendants’ record; some
proved by contemporaneous print; none contradicted. Against

them are the depositions of half a dozen men, testifying from mere
memory, and otherwise so discredited that they can hardly support
themselves.

Can a Court doubt that this monstrous claim is false? Can a Court
feel that the defendants’ story is proved so surely that the Court
knows beyond a doubt that it is true.

BRIEF FOR COMPLAINANTS ON FINAL HEARING.

DATE OF MR. BELL’s INVENTION.

A patentee is entitled to date back to a period before his patent. 4;
There has never been a case where the rule, as we shall presently
state, ought to be applied more liberally than here. On one side is
the man who invented the telephone and promptly patented it, in-
stantly furnished it to the_ community — the man, and the only man,
to whom the world is indebted for it; on the other side is a person
whose boast is that the world never learned anything about the tele—
pl‘one from him, and who is brought forward only as a shield for
a band of speculating infringers. Under the patent, enormous sums
of money have been invested while the claimant and his principal
codefendants have deliberately held their peace. It would be impos-
sible to state a case where every principle of justice as well as the
technical rules which govern courts of equity can require the rule to
be applied with more liberality than here.

The doctrine found in the statute, and acted upon by the courts,
is that a patentee, when assailed, is entitled to go back to some step

between nothing and the patent anterior to the time when he had

so far progressed as to have reduced the thing to practice, or to be
in condition to take out a patent. The statute expressly contem—
plates that coudition of things when something remains to be done
before he can either present himself to the Ofﬁce or Oder a work-
ing instrument to the world.

O’Reilly v. illorse, 15 How. 108.—The Court said that they
would assume for the purposes of the case that the discovery of
Steinheil went back to the months of May or June, 1837, and they
found that Morse had, within the‘meaning of the saving clause of
the statute under discussion, made his invention before that. \Vhat
had he done?

He had not made an instrument nor written a description of
his invention; but, in the words of the Court, he had so far com-
pleted his invention that the Whole process, combination, powers
and machinery were arranged in his mind in the spring of 1837.
He ﬁled his caveat in Qctober, 1837, and his application, April,

DATE or MR. BELL’s INVENTION. 517

1838. Thereupon the Court held that in contest with an alleged
prior inventor he could date from the early spring of 1837.
The language of the Court is :—

" VVaiving, for the present, any remarks upon the identity or simil-
itude of these inventions, the Conit is of opinion that the ﬁrst
branch of the objection cannot. be maint: iincd , dand that Morse was
the ﬁrst and original inventor of the telegraph described in his speci—
ﬁcation, and preceded the three European inventions 1elied on by
the defendants.

“ The evidence ls full and clear that when he was returning from
a visit to Europe, 111 1832,11e was deeply engaged upon this subject
during the voyage , and th- 1t the process and means were so far de—
veloped and 1nranged 111 his own mind, that he was conﬁdent of ulti-
mate succes=. 11:6 is in pioof that he pursued these investigations
with 11111emittingr 11rdor and industry, interrupted occasionally by
pecuniary embaii': 1ss1nents; and we think that it is established by
the testimony of Prof. Gale and others that, early in the spring of
1837, Morse had invented his plan for combining two or more elec-
tric or galvanic circuits, with independent batteries, for the purpose
of overcoming the diminished force of electro—magnetism in long cir—
cuits, although it was not disclosed to the witness until afterwards;
and that there is reasonable ground for believing that he had so far
Completed his invention that the whole process, combination, pow-
ers, and machinery were arranged in his mind, and that the delay
in bringing it out arose from his Want of means. For it required the
highest order of mechanical skill to execute and adjust the nice and
delicate work necessary to put the telegraph into operation, and the
slightest error or defect would have been fatal to its success. He
had not the means at that time to procure the services of Workmen
of that character; and without. their aid no model could be prepared
Which would do justice to his invention. And it n1o1eover required
a large sum of money to procure proper materials for the work. He,
however, ﬁled his caveat 011 the 6th of October, 1837,1111d, on the
7th of April, 1838, apphed for his patent, accompanying his appli—
cation with a speciﬁcation of his invention, and describing the pio-
cess and means used to procure the eﬂ'ect. It is true that O’Reilly,
in his answer, alleges that the plan by which he now combines two
or more galvanic or electric currents, with independent b'lttcries,
was not contained in that specification, but discovered and interpo—
lated afterwards; but there is no evidence whatever to support this
charge. And we are satisﬁed, from the testimony, that the plan as
it now appears in his speciﬁcation had then been invented, and was
actually intended to he described.”

The case at bar is stronger even than that in one respect. Mr.
Bell’s patent is for a method ; the clear conception of that method and

518 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

the arrangement in the mind are the gist of it. That once possessed,

the reduction to practice was so easy for a constructor of competent
skill that, if Mr. Bell, the moment he had reached the conception
presently to be spoken of, had published it, the world would very
quickly have had speaking telephones without the necessity of fur-
ther invention. A process or method is not the subject of a mechan-
ical structure, although indeed one can be made and must be made
by which to practise it. The disclosure of a process or method,
together with the statement of the kind of apparatus by which it
can be practised, made by word of mouth to. a person competent to
understand and appreciate it, is sufﬁcient. Mr. Bell made such a
disclosure in this case to Prof. Blake in October, 1874, and to
Prof. Cross during the same season (see p. 47, supra). What
he then disclosed was precisely the method and precisely the form
and kind of apparatus claimed in his ﬁfth claim and shown in Fig.
7 of the patent. No invention but only good workmanlikc skill
was needed to make a speaking telephone from the information
that disclosure contained. It is very true thtt Mr. Bell believed
that the practical effects would be too slight to be of value. That
was a question of reduction to practice. He believed that he could
ultimately reduce it to practice, and he did. He ﬁnally did it
exactly in the way described. He was in the condition of the man
who had thought out the apparatus so thoroughly that he could
direct a workman t.) construct exactly what was afterwards described
in his patent.

It Will be observed that this is an invention Which can be carried
in the head without any trouble; it does not depend upon nice pro-
portions, nor does it involve a complicated mechanism, as a sewing
machine or a reaping machine does, in which even the best mechanic
cannot always tell in advance that the things will work at all.
That every part of his proposed telephone would work exactly as he
intended, and as such process or method required, was not then or
now open to serious doubt. The only doubt was as to the quantmn
of effect produced, not as to the quality of it. Now, we do not con-
tend that sucb a disclOsure can amount to a reduction to practice,
but we do insist that it comes to the highest point which precedes
reduction to practice ; and that is exactly the point which the statute
allows the successful patentee to go back to.

DATE OF HR. BELL’s INVENTION. 519

Again, in June, 1875, he constructed instruments which are in
eﬁ'ect Fig. 7 of the patent. We believe the defendants contend
that they are a little better than Fig. 7 of the patent in one respect.
Those instruments, although they gave very little results then, will,
when taken to a quiet place, talk. The principal Operative parts
remain, and they have been reconstructud from them and the ex-
periment tried. At least these are good as sketches.

Of course these facts must be proved beyond a reasonable doubt,
but we conceive that there is no difﬁculty of the kind here. Con-
temporaneous writings establish the fact. The character of these
writings, apart from any description in them, shdws that 'he had
something which seemed to Prof. Henry, for example, to be a cor—
rect and adequate conception. The testimony of Dr. Blake and
Prof. Cross cannot be doubted. And, ﬁnally, Mr. Bell writes in one
of his letters what leaves the matter clear from any doubt upon any
question of fact. In his letter of May 4, 1875 (p. 49, supra), he
said : " The plan for transmitting timbre that I explained to you be-
fore, namely, causing permanent magnets to vibrate in front of
electro-magnets, is chieﬂy defective, on account of the feeblcness of
the induced currents.” That sentence of itself proves, ﬁrst, that the
plan was for the transmission of timbre or quality of sound, which
includes speech; second, that it was to be embodied in the magneto
instruments, such as is shown in Fig. 7 of the patent.

There can be no question that Mr. Bell showed the diligence which
the statue requires. In a little over a year from the day when he
ﬁrst conceived of the mode by which speech could be transmitted, he
set himself to draw the speciﬁcation on which his patent was after-
wards actually issued. The course which he pursuedin his attempts
to reduce to practice was a course which was approved by the judg-
ment of no less a person than Prof. Henry at the time and has
been justiﬁed by the results. Certainly the defendants have noth—

ing to say on the question oftime, for their aSsertion is that their
man suffered sixteen years to elapse between the time when he made
his ﬁrst experimental model and the day he went to the Patent
Oﬂice. Their statements, together with the results ofthe New York
tests, amount to an assertion, whether true or not, that ten years
elapsed between the ﬁrst model, the alleged teacup or its pred—

520 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

eeessor, and his ﬁrst pair of instruments, D and E, which could
possibly transmit a sentence. Indeed in the fall of 1878 the defend—
ant Chellis began to consider whether Drawbaugh could be set up
as a prior inventor, and, in alternations of certainty that he was not,
and hope that he might afford ground for such a speculation, he con-
sumed, before going to the Patent Ofﬁce, more time than Mr. Bell
occupied in making his invention and getting his patent.

The facts about Mr. Bell, then, brieﬂy are: In the fall of 1874
be disclosed to Dr. Blake and to Prof. Cross the method and the
apparatus described and claimed in his patent. He studied the
matter intently through the winter and spring, and discussed it with
Prof. Joseph Henry and others. ,

In June, 1875, he made an instrument thether it then gave
good results or not, it was at least as much as a sketch on paper.
In September, 1875, he began his speciﬁcation, in October com-
pleted it, and Dec. 9, 1875, sent it. to “Washington. Jan. 20, 1876,
he swore to it, Feb. 14, 1876, he ﬁled it. It issued. He at once
made his invention known, became famous for it, and put it into
extensive commercial use.

Drawbaugh cannot pretend to any diligenceany where in the case.
He has nothing to stand on but a reduction to practice in the shape
of an instrument worth having for practical use. D and E are the
ﬁrst. He cannot claim any eailier date.

The authorities are : —

(1) That the defendants must prove their case beyond a reason~
able doubt earlier than Mr. Bell’s conception; and the burden to
do this is on them throughout.

(2) They must prove a complete invention.

(3) A patentee and an alleged prior inventor do not stand on the
same footing.

(4) Mr. Bell is entitled to date from October, 1874.

O’Reilly v. Morse is conclusive on the last point. Some other

authorities are the following : _—

Brodie v. Oplzz'r Silver Ztﬁning Company, 4 Fish. 137 (1867),
FIELD, J. (p. 139). J“ The conception of the improvement, as we
have stated, ﬁrst occurred to this plaintiﬂ' in 1862, and barrels with
the improvement were tested by him as early as April, 1863. This

DATE OF MR. BELL’s INVENTION. 521

carries the invention to an earlier period than any designated by the
Witnesses of the defendants. But, independent of this consideration,
the patent is primafacie evidence that the patentec was the first in-
ventor. Whoever controverts and denies his claim in this respect
has the burden of proof upon him to establish the contrary. This
is not accomplished by showing the construction of the improvement
before the patent issued; it must he shown that the construction pre—
ceded the invention of the patentec, that is, before the conception
of the improvement was applied in practice.”

Dixon v. Mag/er, 1 Robb. 324, 4 Wash. 68 (1821) (pp. 72, 3'29),
VVASIIINGTON, J. ———" But, if the defendant attempts to aVoid the
patent by showing that the patentee was not the original discov—
erer of the thing patented. the patent will be considered as relating
hack to the original discovery. The notice authorized to be given
by the sixth section of the law is, that the plaintiff was not the origi-
nal discoverer, but that the thing patented had been in use, ete.,
anterior to the supposed discovery of the patentee.”

Adams v. Edwards, 1 Fish. 1 (1848), WOODBURY, J. (p. 7, ad
ﬁn.). ~—-“The law means by invention, not maturity. It must be the
idea struck out, the brilliant thought obtained, the great improvement
in embryo. He must have that; but if he has that, he may be years
improving it, maturing it. It may require half a life. But in that
time he must have devoted himself to it as much as circumstances
would allow. But the period when he strikes out the plan which he
afterwards patents, that is the time of the invention, — that is the
time when the disc ivery occurs.”

Woodman v. Stimpson, 3 Fish. 98 (1836), LOWELL, J. (p.
105). — “Another point which I have not before seen in the precise
way in which I am about to put it is the principle of law which
is to govern you in determining the time when this invention
was made. For the purposes of this case, I shall rule that
the principle of law is, that he is the original and ﬁrst inventor of a.
machine, or combination, or whatever it is, if it was not known or
used by others before his discovery on invention, —the man who has
made an invention that was not known before he made it. That
does not mean that he got his machine into the complete state in
which you ﬁnd it in the patent. Neither does it mean the first mo—
ment at which he conceived the idea that it would be a good thing to
do that. It means not only when he conceived that such a thing
would be a desirable thing to do, but when he Izad conceived the
idea of how to do it, substantially as he has done it. I shall not
have occasion to refer to that again, perhaps. That is my view of
the law.” /

Draper v. Potomska Mills, 3 Bann. and Ard. 214 (1878), SHEP-
LEY,J. (p. 215).—"An imperfect and incomplete invention, resting

522 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

in mere theory, or in intellectual notion, or in uncertain experiments,
and not actually reduced to practice and embodied in some distinct
machinery, apparatus, manntacture or composition of matter, is not,
and indeed cannot be, patcntable under our patent acts, since it is
impossible, under such cirtuinstanees, to comply with the fundamental
iequisitcs ()l those acts. Reed v. Cutter, 1 Story, 590. Illustrated
:iraa ings of conceiVed ide: s do not constitute an invention, and un—
less they are tollowed up by a s tasonable observance of the require-
ments of the patent laws, they can have no effect upon a subsequently
granted patent to another. )JUL a patentee whose patent is assailed
upon the ground of want of novelty, may show by sketches and
drum ings, the date of his inceptive invention, and, it" he has exercised
rrasouable diligence in perfecting and adaptingJr it, and in applying
for his patent, its protection will be carried back to such date.
Reeves v. T/ze [fey/atone Bridge Company, 1 Off. Gaz. 466. The
drawings made by Draper, and exhibited to Sawyer, May 13, 1871,
exhibit (L mutated and perfected invention in t/ze mind of [/26 in—
cenlor, l't quiring‘ only an embodiment in an operative spindle and hob—
bin to entitle him to a patent. As there was no unreasonable delay
or want of diligence in pertecting and adapting the invention and
applying for a patent, I see no reason, upon the evidence in this
record, why the protection of his patent should not be carried back
to that date.”

Ifneeland v. Sheriff, 2 Fed. Rep. 901 (1880), MC KENNAN, J.
(p. H01). _. “ It would not be proﬁtable to collate the proofs on this
point. That, Knecland conceived the idea of his invention in 1863;
that he described it partially to different persons afterwards; that he
made sketches, and had a drawing of it made in the summer of 1864;
and that he was diligent in reducing it to a practical form, and in
obtaining a patent for it, is all satisfactorily shown.

“ The precise date of the occurrence of these tacts does not ap—
pear, hut it is evident that the statements of the Witnesses on this
point are appioximately correct, because, from the nature of the
transactions stated, they must have occurred — if the Witnesses are to
be believed at all—some time anteriorto the date of the application
for the patent, which was Feb. 27, 1865.

“ It is not satisfactorily proved that before the date of Kneeland’s
invuntion, thus established, the devise of Davis was made and used.
There is a least plausible reason for the inference that the conception
of Davis’s valve was not matured in his own mind earlier than the
latter part of 1864, and was not constructed and used until some
time during the year 1865. ”This, at least, seems to me to be clear,
that the conception and description of Davis’s valve is not carried
back by any witness to the time when it is shown Kneeland described
and sketched his invention in the early part of September, 1864.
That this is the latest period at which Kneeland’s invention can be
fixed is settled by numerous decisions. As was said in Reeves v.

DATE or MR. BELL’s INVENTION. 523

The [fag/stone Bridge Company, 1 Off. Gaz. 486: ' But a patentee
whose patent is assailed upon the ground of want of novelty
may show, by sketches and drawings, the date of his ineeptive iii—
vention. and if he has exercised reasonable diligence in perfecting
and adapting it, and in applying for his patent, its protection will
be carried back to such date.’

"Kneeland’s inceptive invention was the earliest, and he was diligent
in perfecting and adapting it, and in applying for his patent. He-
is, therefore, prior in right to Davis, and is entitled to a decree as
prayed for.”

Loom U . v. Higgins, 105 U. S. 580 (1881), BRADLEY, J., of
Sup. Ct. (p. 592). — ‘i On this point we think it very clearly made
out, though we shall not go into much detail in commenting upon
the evidence, that the whole substance of the invention was con-
ceived by Webster and exhibited by him in a drawing as early as
the winter of 1865—66, long before Davis entertained any idea of it.
The original of this drawing is in existence, and was produced in
evidence, and is well authenticated.

(P. 594). "Conceding that Davis was an original inventor, the
earliest point of time that he can be regarded as such was in the
spring of 1868. But Webster had invented it before that time, and.
had made a drawing of it which, in March, 1868, he exhibited and
explained to Davis. An invention relating to machinery may be ex-
hibited either in a drawingi or in a model, so as to lay the foundation
of a claim to priority, if it be sufﬁcient to enable those skilled in
the art to understand it. There is no doubt that Davis understood
Webster’s drawing; and he did not then claim that the invention
belonged to him~elf." '

Roemer v. IIeadley, 19 Fed. Rep. 205 (1883), NIXON, J. (p.
206). -—" After a careful examination of these, I deem it necessary
to advert to only two ot'tliem, to wit, Exhibit D 1 and Exhibit D 3.
There is nothing in the patent sued on which is not fairly embraced'
in these, and if the defendant has shown that they were in public
use before the date of the complainant’s inVentiou, the patent must
be held void for want of novelty. The testimony is very meagre.
The defendant offered only one witness to prove their prior use.
Charles Kupper testiﬁed that he was a manufacturer of bag frames
and locks; that he had made looks like Exhibit D 3, and had sold
them to defendant; that the ﬁrst he sold to him was on March 31,
1878, and that the ﬁrst he ever made was a month or two before
Christmas in the year 1877.

” \Vheii asked about locks like Exhibit D 1, he replied, ‘ I made
them a long time after Exhibit D 3, but I cannot say when.’

" There was no other testimony on the subject of public prior rise.

524 BRIEF FOR COMPLAINANTS ON FINAL HEARING.

The complainant’s patent was issued Oct. 1, 1878. He was called
to prove the (late of his invention, and was azsked —

“Q. ‘VV hen did you ﬁrst conceive this lock 111 its present practi-

cal tmm?’ A. ‘I made the invention in the e111 ly pa1t of 1876, but
made the ﬁ1st model in January, 1878, after which 1 constructed the
lock. My idea was to make a lock that would, when ﬁnished, resem-
ble a lock I invented a few months before, and which I would be
able to make of cheaper material ’

“ Q. ‘VVes that model of \Vlll(h you speak similar to the lock pat-
ented by you ‘3’ A. ‘It was the same thing.’

“ Such are his statements, and his only statements. on the subject.
They are not clear, but they show that the invention antedates the
p1oof of the time of any prim use. There was no cross-examination
of the Witness, and as the defendant seems willing to accept the ac
count ot this date without question, the Court will do the same.”

THE DRAPER—KISSINGER HYDRAULIC RAM.

THE DRAI’ER-KISSINGER HYDRAULIC RAM.

Thomas Draper (p. 427, supra) testiﬁed that Drawbaugh showed
him C and I, talked through them, and asked him for money. If
this was before the Bell patent, Draper is only one of a number who
swears to more than the instruments can perform ; if, as we believe,
it was in 1877, it proves that C and I were the best Drawbaugh had
then, and destroys the defence.

This collateral issue, however, is especially important, because
the defendants called sixty-ﬁve witnesses about it, and it illustrates
their methods of manufacturing a case, and the general wurthlessness
ofjust such evidence as they have adduced for the talking machine.

Draper (defts, ii, 1164) said that he went to Drawbangh’s shop
only once; that it was with Geo. W. Kissinger; that it was to order
an hydraulicram for a farm at Marysville, eight miles from the shop,
which farm was owned by Draper, and occupied by Kissinger.
Draper said that the ram was put in the season after it was ordered ;
he was not quite positive that there was so much delay, but his mind
clearly was that the delay was not more than one season. He so
testiﬁed on direct examination, and on cross-examination conﬁrmed
this as follows (defts, ii, 1174) : —

" X Q. 49. I understand you to say that the visit to Drawbaugh’s
shop you have testiﬁed about was for the purpose of ordering a
ram, but that it was the following season when the rain was actually
delivered and put up: is that your meaning?

“A. So far as my visit to Drawbaugh’s shop is concerned, that
is correct; but I am not certain- that I said pOsitively that the ram
was not put in until the next season. I am not certain about that, but
I am of the opinion that it was not put in until the next season. I
know that there was considerable delay about getting the wooden
piping bored, and I wrote to him several times about it; but Kissin-
ger didn’t get it in until some time in the following season. I was
anxious to see how the ram would Work. Kissinger’s excuse to me
was, that he couldn’t get an anger to bore the pipes with. I think

it was some time late in the season. I think it was in the fall of
1875, some time, when he put the ram in; that is my impression.”

He thus alleged_that the visit was in 1874, and the ram put in in
1875.
It might be that only those three men—Draper, Drawbaugh

526 BRIEF FOR. COMPLAINANTS ON FINAL HEARING.

and Kissinger—would know about the visit, but the time of the

putting in of the ram could be ascertained and that would settle it.
The ram used svme two hum‘red feet of half—inch iron pipe from

the ram up to the house, and bored logs from the spring to the ram.

Draubaugh bought the iron pipe in Philadelphia, had it shipped to

himself at Marysville, Dare KiSsinger an order to get it, and Kissin-
ger gave the order to J. C. Zimmerman, his son—in-law, who got it
and receipted for it. We found the bill, among some bills for ram
pipe, produced by Drawbaugh for another purpose, and the other
papers were with the railroad company; we produced and printed
all (complts, i, 555).

The date of Mr. Drawbangh’s order upon the station agent for the
delivery of the pipe to Mr. Kissinger is there incorrectly printed as
Sept. 26, 1878. This error was subsequently corrected, and a copy
of the document with the hue date, Sept. 6, 1878, is in print on p.
2491, complainants’closing testimony. The date of the bill for the
pipe is July 1, 1870’; the date of the freight bill, July 2, 1878; the
(late of Mr. Drawbaugh’s order for the delivery of the pipe to Mr.
Kissinger, Sept. 6, 1878.

Kissinger and his family were old friends of Drawbaugh, and had
been Visited by them to see if they could testify to the talking ma-
chine, but they could not. The defendants have therefore recom-
mended them for character. He, his three sons and son-in—law all
testify that the ram was put in in the fall of 1878; Kissinger and
the son-in-law, Zimmerman, remember the visit to order it, and that
it was in the fall of 1877. Zimmel man did not live in Marysville until
the beginning of 1879. John Kissinger was at home from Christ-
mas, 1877, until May, 1878, and has lived in Illinois ever since; he
helped bore wooden pipe for the ram during that visit, but never saw
the Tam in. KiSsiuger, the father, said that he and Draper had often
talked about a ram, but never ordered it until 1877.

They further testiﬁed that on election day, November, 1878, and
on the day before, Drawbaugh was there putting in the ram.

Complainants also produced the man, Jesse Wagner, who stoned
up the wall of the ram pit a day or two after the arrival of the ram,
and showed by his books that this work was done on the 6th and 7th

THE DRAPER—KISSINGER HYDRAULIC RAM. 527

of Nowmber, 1878; the books state that the work was for Kissin-
ger, and on his "rant.”

This evidence very completely demolished Mr. Draper’s story, and
the more eﬂ'ectively as it was in harmony with that story so far as
regards the interval oftime which elapsed between the ordering of the
ram and the putting it in.

The defendants spent a year in preparing to meet this. In concoct-
ing and organizing theirproof, they deliberately adopted precisely that
test of the correctness of Mr. Draper’s deposition, in regard to the
atl~important question of time, as the complainants had adopted.
They made the time of the PUTTING IN of the ram the chief crucial
question, and undertook to prove that it was put in, in the fall of
1870'.

They attempted to prove this solely by recollections of witnesses
as to what they had heard, and what they had seen, and their recol—
lections of the dates thereof. They prepared to procure such wit-
nesses in their usual way.

Tht'il‘ witne~s, Eli W. \Vise, who keeps a store in Marysville, says,
“I have heard conversation going on almost every evening in my
store about it ; the Conversation is nothing more than is usual when
anything new oceurs or is ventilated, just as people will talk about a
murder 01‘ a riot, or anything of that sort ” (>111'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.