Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1880-01-09

tuning as the most important factor in the
combination. Whether so or not, l find il
was an important factor. but / find myself
wholly unable from the evidence to separate
the three fsctors-the inclined reeds, the con-
tracted valve openings, ard the tuning-so as
to assign any proportion Of profit derived
from the whole combination TO either Of the
factors which constituted the whole. No ev-
idence was offered from which any basis Of
computation could be derived that would
furnish solution to this conundrum.
Il was claimed by counsel for defendants
that there is no improved musical effect pro-
duced by the fact that the vibrating ends Of
the reeds in the third partial set terminate at
or near the base as compared with organs
in which the vibrating ends OF the reeds Of the
third partial set terminate at the upper level
Of the base board. On this point evidence
from distinguished musical experts was offer
Cd and received, subject to objection. Six
organs made at defendants factory and en-
closed in plain cases, similar in external APP
pearance. were presented to these experts for
trial, with a view to make a practical test Of
this question. These organs were FIVE and
six octave, some Of them having the third
partial set like Exhibit {. others having the
third set placed horizontal, the vibrating ends
separated from the valves by the thickness Of
the base board. and one Of them had several
OF the reeds ia the third set placed at irregu-
lar distances still above the horizontal The
experts being ignorant Of the internal con-
struction Of these several organs, were invit-
ed to play upon them and then to say, wheth.
er from the sound and musical effects pro-
duced, they could distinguish one from the
other, and TO point out, il they could. in
which the reeds in the third set we're horizon
tai and in which inclined. They all testified
that after repeated and careful trial and e1.
pertinent they could not so distinguish one
sort from the other. and that there was no
practical or perceptible difference in musical
effect, in so far as quality Of tone or quick
ness Of response is concerned The expert
ment vas repeated 10 my presence with Ike
result | perceived no difference. and
should say from the evidence submitted to
me on this point, lat there is none. con
clude that while 1t is true, undoubtedly, that
the nearer the reed is placed to the valve,
the quicker will be the response. yet prac-
ucally, in the case at bar, the difference is
too slight to be perceptible to the most prac-
tised musical ear, and therefore practically il
IS OF no consequence as regards synchronous
or musical effect, whether the reed is placed
horizontally at the distance Of the thickness
Of an ordinary reed base board from the
valve, OF obliquely as in Exhibit c. The
testimony on this point compels me TO this
conclusion
am requested by plaintiffs counsel to
find and state some sum with which defend
ants should be charged by reason of the gain
10 their business in consequence Of their use
Of plaintiffs improvement
think it is true that the introduction Of
the third partial set in their organs when
and as they did, was a factor in producing
such increase a. did take place from $50 to
D,,4 g. Ill ~. \.
pushed with great energy and skill, then and
ever since, and that, in fact, a greater in.
crease has taken place since 1874, when they
began using the horizontal third set. than
during a similar period ever before | could
not say that such later increase WAS due To
the use Of the horizontal third set. and il
would be practically impossible to assign apv !
arithmeticsl proportion Of such increment
either in the former or later period of in. I
crease above named, to any one Of the yarie. I
ty Of causes from which it resulted
The evidence is too remot, to furnish dat
for anything other than indefinite conjectur
| therefore dismiss that claim l
Plaintiffs counsel also climed by vayof |
damages a large but indefnie sum. vhici it 7
is said be might and would hive made by the
sale Of his improvement, if lefendats had
not used it.
The only evidence on th poir comes 5
from the plaintiff, who. on Ige - Of Mas i
tiers Record, testifes thus ,
20. q. You may state you are able
what damages, if any, you I've suffered in
Of the Observation-Disclosures q
organs containing reed boardike Exhibits '
and 2Oi" /
II. OF course this is a uestion that I
could not answer very dately. But !
should judge that at least , should have !
sold one hundred organs NTH more if we !
had controlled the patent" /
This seems TO me too yagulnd conjectur- q
al TO afford any intelligent la, for computA- I
ton Of damages. | thereto dismiss the !
claim. ,
! am also requested by the aintih's coun-
SCI to find that the defendAntn the persist I
ent use Of his patented implement, acted (
in bad faith. 7
think the defendants sup,,ed that their n
patent Of lsGG, purchased 0 the plaintiff
covered the right to make t partial third
set inclined. II the use Of Iintif-s patent
under misapprehensOn Of tlr rights con- c
stitutes bad faith, they were City, otherwise e
not .
/ cannot find from the eience that the ,
third partial horizontal set wan general use -,
prior to the date Of plaints patent, nor
that the defendants ever used prior to 1874. o
The plaintiffs invention valuable in ;
point Of mechanical advants. more COM q
pact and stronger, costing tie more than p,
the horizontal method but no.nough more :,
to outweigh its superiority in is respect
cannot from any evidence stmitted to me v
give any estimate Of its moneyalue. p
The defendants counsel Glazed that upon I.
his own showing the plaintiff as entitled to I;
nominal damages only. But decline so to
hold, and for the purpose Of esenting the Il
whole case for final disposiu0upon my re- Il
port, have stated the accou as set forth el
herein, accompanied with my sciAl findings a
of fact, based upon the eviden before me.
l therefore allow the AccOt as stated, 4,
subject in whole and in detail the opinion u
Of the court d
The printed volume contAing the evil
dence before Inc, the argumen OF counsel, Il
he orders Of reference and cree of the a.
court, each certified by me ahall the mod
els and exhibits used on the HI before me ei
are returned with and made a IT of my re- u
port. AL which is respectfullyubmitted b
(Signed) JoHN W. SlyART, Il
Spsl Master. nj
Filed Jan. !, 1880. -
Signed GEO. E. JcSsoN, u
Dety Clerk. ST
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The net debt of New York N is SlO4,- IA
,2S 1896 and Of Brooklyn $37, 1865. an in o