Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1880-01-09
THE BUROETT-EsTEY ORGAN CASE.
THE MASTERS REPORT.
.s.clrsa. Court. Dl.,rls. Of vermont.

Us. Circuit Court. District ofVernont.
RILEY BURDErT vs.. JAcoB EsrEY. JUL1Us ].
EsTEY AND LEVI X. FULLER IL EQUIrY.
To he Hon. Circuit court for ne Distr'., II
Vermont.
The undersigned, Special Master under the
special order and commission Of this court
herewith returned, makes this his report in the
premises
After due notice met the parties at the
Brooks House, in Brattleboro. on the / ith
day Of January, 1872 and the hearing was
continued from time to time, by agreement,
until the LIST day Of October, 1879 when the
cause was argued at Brattleboro by counsel
on either side and submitted
The patent in question was issued Februa-
~ 30 ls69, but bore date August ~, l,Cs
During the interval between said dates the
defendants manufactured a number Of organs
containing the patented improvement
They, however, deny liability TO account
for organs made before the actual date Of
issue
That portions of the account is therefore
separately stated, and the question of defend
ants liability thereon is submitted to the
court.
The defendants produced their books and
employed the services Of a skilled accountant
who, after some months Of examination, pre-
pared and presented a detailed statement Of
all organs made by them containing the i'm
proyemeu at from August p, lsGs, to May l.
1874. Ny allowances il the accounts here
with stated, are made subject to the opinion
Of the Court upon the facts found and here
matter stated. and in order to avoid unneces-
sary verbal repetition, here add that all or
gans referred to in the following statements,
contained the plaintiffs improvement.
The whole number Of organs made and
sold by the defendants between the Path day
Of August ls6s, and the 23d day Of Februa-
~. 1853 was 33s, Of which 300 we're &C
counted for, and 20 were not accounted for,
and during the same period others were
made and given away.
The net gain to the defendants on the sale
Of the 800 organs on account Of the third par.
tial set inclusive Of cost Of making. is stated
in defendants account at $4.345.74. The
net gain on the % organs unaccounted for is
stated in their account at $50 81. find the
cost Of making the third partial set in the
300 organs at S93G.27, and same in the - at
sJO.s7.
RECAPITULAr1oN.
In 800 organs for 81 set S4.345.74
Cost Of making Sd set 93G.27
Balance Of profit on I'd set---$3, 4O9. Il
UnRccounted for - organs
on which profit charged
not collected s37O9l
Cost Of ID set Js.s7
Balance -$3l2. "a
II plaintiff is entitled to recover these un-
collected profits, then find the sum of profit
realized by defendants on organs made be
tween the dates above named TO be $3.72l-
81.
In the interval between February %. 1869.
and May l, 1874, the defendants made and
sold 1897 six octave organs, receiving Oh ac-
count Of the third SGT therein the aggregate
sum Of sl1,GjG.42. During the came period
they made and sold -, Gao FIVE octave organs.
receiving on account Of the third partial set
therein the aggregate sum Of S1sO.9iGl2.
During the same period they sold 10 organs
without extra charge for the third partial Set
and 2j1 organs which defendants claim were
not within plaintiffs patent. l disAllow the
plaintiffs claim on the 40 organs, and allow
that on the Pol organs named above.
There were also 22 other organs made dur
ing the same period which were either given
away Of lost, 30 that the defendants derived
no profit therefrom, and these disallow.
find the aggregate cost Of making the
third partial set in the 1897 six octave organs
named above at the sum of -, 5S3. 81, and
the aggregate cost of making the third par
tial set in the $3.50 FIVE octave organs at the
sum Of 81, $500.
Should the court be Of the opinion that the
defendants should account for the third par
tial set in the 4G organs in the sale Of which
the price Of the third set was not charged nor
received 10y them, then I state the aggregate
profits (on the same basis Is is fixed in the
others for these 10 organs would be $3.50 81.
The 25l organs hereinbefore mentioned are
included in the Il, Gao a. stated
REHABILITATION
Organs sold and accounted for between
Aug. -, 1865, and Feb. %, 1863, 300
Net profit on third set S3,4O9.47
Do. on - unaccounted for 3I2.O4
Total -S3 ,72l.5I
Net profit on Sd partial set
in 1897 six octaves $l2,O72GI
Do. on 5000 five octavos 1873, jjG.92
DO. on 10 organs 3sGsj
Total profit -Sl49, 49,. 50
The foregoing statement suggests the meth
cd by which net profits in this case are
found. No criterion Of the value Of plain
tiff 5 improvement, nor no basis for the esti-
nation of profits was supplied by the evil
dence other than the one adopted, namely.
the ascertainment Of the additional price
charged for the third partial set by the de-
PENDANTS, and the deduction from the Aggre-
gate Of each additional price, the aggregate
of the cost Of the set and all the
evidence on this point is derived from the |
books. from which tabulated
have been made with great time
and labor, by an expert employed for that
purpose, setting forth in detail the number Of |
organs so made and the profits derived there
from, inclusive of actual cost, which find |
from the evidence Of the plaintiff to be SO. Oh |
for the five octaves and 90. 20 for the six oc-
taves, and my computations are made on
that basis
The plaintiff has never fixed any license |
fee, and none had ever been established for |
bis improvement.
This third partial set, which, placed as it |
is in plaintiffs patent, is the subject Of this |
was termed by the plaintiff |
q CeLeste, and by the defendants " FOr JtGi- |
lante" Neither the plaintiff nor the defend |
ants in their public advertisements have ever
made mention Of the fact that the reeds were |
inclined, or the valves contracted nor does
il appear that these facts were ever made
known specifically TO the agents of either
party who conducted their sales, or that they
were ever in any instance brought TO the
Of any purchaser of instruments
made by either party. The terms "oeleste"
and ''uOr jubildRt<," seem to have been en-
ployed as descriptive Of peculiar musical
n 81 ~ a.. IL 4