The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-15


gument Of the counsel on the other side. shall re-
lieye your honors Of feeling Of regret. and even
distress, inflicted upon you by the powerful sympa
thy exerted by Mr.. Choate, my friend and counsel
on the ether side IN this case for the unhappy
iition, the melancholy and depressed circumstances
into which Mr.. Day has been brought by his un-
fortunate and miserable connection with Mr.. Good
year.
common sayings than my brother Choate-no one
who exceeds him in power of expression, or who
draws pictures like him.
Mr.. Choate in the pathetic speech he uttered so
atfectpgly, described Day as n deluded victim to
whom Goodyear had promised to afford protection,
but gave such protection as the vulture gives the
lamb, covering and devouring.
Then no alleged that Goodyear wished to revive
Day little, felt his pulse to if trembling
motion of lite could not be discovered, that he
might submit the victim to the pangs of another
death, and once more gloat over his sufIerings. De-
scending from this region of fancy, he said that
Goodyear had sold Day license; and Wrestling
from him all its benefits, had injured him as much
NJ if he had burned his factory to the ground. He
said that Day had squandered his fortune for the
privilege of making shirred goods. under Good
years patents, and received nothing in return.
Now, all these touching observations would,
think, be very effective but for one thing. The
counsel have not thought it worth while to offer
particle OF evidence to sustain these assertions not
one particle.
These observations are admit, very eloquent,
very pathetic, very beautiful, but for one drawback.
| am reminded Of maxim Of the French rhetori-
clans, which wish was better known and more re-
garded. that nothing is beautiful that is not true.
Truth the cynosure of eloquence, and pathos is of
but little value further than il is analogous to real
ity, for there is no beauty where there truth.
Now may il please your honors. for the exposition
in length and breadth of this suffering of Mr.. Day,
by the failure Of Mr.. Goodyear to fulfill his cove
nant call your attention to the testimony Of Mr..
Days bookkeepcr. Mr. Rollo Mr.. Rollo swears
that Day made so yards day of shirred goods, and
m nttn 1aN In rtnnS mant
to work for him in 1917; that the cost of the pro-
duction is less than s. yard, and that the goods
arc sold at two cents cord, two cents for each
strand running lcngthwise along the cloth.
Then, II his own bookkeeper is to be believed,
he is selling out OF this license privilege, $3.50
worth Of goods day. or $50, 420 year, which
is all gain. less $2l 800 cost of production. The
balance is net profit, and that net profit is $l75 $40
year That sno beggarly account Of empty boxes
nor empty purses de is making, moreover. gain
and profit upon the manufacture of every other ar
ticle that he is entitled to make under the license
which he holds from Goodyear.
Now, there is not word in contradiction Of
this, not "A syllable. The evidence is taken from
Days books, and his own employees, undisputedand
indispuable. What, then, becomes of his com
plants, his lamentations and distress about the non
performance Of the contract
! need not contend may it please your honors, it
e too clear proposition to require argument, that,
if all this were not so, Horace ii Day had right
to break his own independent covenant to infringe
on Goodyear's patents to take the law into his own
hands, to set up the Standard will not say of his
own judgment-but Of his own viii, and repudiate
his own contract, on the most frivolous and un-
founded grounds that were offered for mans
defence support, on the record of any court Of
justice.
And now, do not your honors feel little relieved
from the burden you bore on your minds, since
MIR Choate addressed YOU about the Injuries and
suflerings ofMr. Day Ifmy statements have given
your honors any relief, have performed duty Of
peneyolence.
The sulphur patent was obtained in 1899 It's
specification claim is in these words Qieads the
specification
The patent of 1889 for sulphur and rubber alone
Now, on the existing state of facts displayed upon
this record, does it appear that the combination Of
sulphur and rubber alone was patentablc as a COM
pound There can be no doubt about that. Sup
pose then, sulphur was known of the ingred-
ents of compound, rubber another, white lead
as another, and ltharge and lampblack as Others.
Suppose they were all used more or less Now, /
take ii that when there are so many substances
sometimes used, and sometimes not used. in forming
a combination for a particular purpose, it is compe
tent to select two OF the substances and reject the
rest, taking patent for combination of the two
alone That is clear, because the inventor may
have discovered that the former combination in the
art was rendered useless by the presence of some
superous Ingredients and this invention may be the
result OF diyerging far from common practice and
common use, to leave out one or more ngredi-
ents, and go for patentabe combination of two,
and two only.
but III is salu tnat hayward invention wa dedI-
Gated to the public. That is very common defence,
whenever il occurs in the process of manufactures
that particular improvement takes time, and eX
pertinent, and thought to perfect it.
Hayward was poor other inventors. He was
pursuing a course of experiments. He had used
sulphur before he got his patent But he had used
it Tor no such purpose az that which he ultimately
contemplated He had kept up its use secret as
well a. he could. But Hayward never made any use
of sulphur, as contemplated, for the general
purposes for which he made his invention and took
out his patent; but he did use it, upon some little
light cloth for aprons, and when they were sold at
the factories, and went into the families OF New
England, they had smell Of sulphur He commu-
nicated his secret to nobody, unless by the fact
Of selling the goods, if that could amount to a
munication He went on to sec what would be the
effect Of Incorporating the substances of rubber and
sulphur together, and thus bringing them into
compound of substantive utility.
Now, there is no evidence whatever in this case,
that he used his compound of sulphur and rubber
that others used it with his knowledge, before he
applied for a patent for the great ultimate use or
purpose for which he intended it. lie was, as have
said, all the while going through painful series Of
experiments, to gee how combination of these sub
stances could be useful, and as to produce bene
fetal results There is evidence that he eyersold
any goods made by the compromising OF suiphuranl
rubber alone, before lie applied for this patent.
None at all.
We have reached that point in this discussion
where the great question of the case rises up before
that great question is, the truth falsity of he
claim by Charles Goodyear to the invention of the
process Of yulcanzing India rubber. Did he make
such invention is he who sits here before US the
man known now. and to be known forever, while
the history Of art remains, the individual who in-
troduced TO the knowledge of his country, and to
the knowledge of the whole civilized world this eX
traordinary phenomenon 1t sa phenomenon. My
knowledge Of physics j. not great; am no philo-
sopher, not being willing to live quite 50 abste-
mously and poverty stricken Mr.. Goodyear be-
cause / have not been inspired with the same
ambition; and have given my attention through
life to objects little more practical. But when
the nature Of this manufacture first came to my
knowledge. thought that so far az my observation
had gone. knew Of but one thing IN the whole
world analogous to il.
The great popularity Of this vucanizing process
is this; III SOU take compound Of sulphur and
rubber in dry state, and grind and mix them to-
gcther and apply heat, the consequence is, that the
substance sotens, and softcns, and soitens, as the
degree Of heat increases until it reaches certain
height in the thermometer, say PIP degrees Fahren-