Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1904-05-20
NEITHER SIDE
NAY RECOVER
Judge Durham Gives His De-
cision In McNeely- Burnell
Mat Case
is AN IMPORTANT ONE
IMPORTANT
While Order OF Judgment Is Brief and
to the Point, Action of the Court Set
Ties Long Drawn Out Controversy
Appeal May Be Taken by Either or
Both Sides-The Courts Order.

Judge G. w. Burnllam, of Vinton,
handed down his decision Thursday in
the case of the McNeely Fiat Wire Mat
Company VS.. the Flexible Flat Steel
Mat Company and 4. S. Burnell and E.
Tuffree. which was begun in the dis
trict court, before him. in March, 1908.
Judge Burnham holds that neither side
is entitled to recover, and he leaves the
the same positions as he found them.
The plaintiff is ordered to pay the costs
incurred by 1t. as are also the defend
ants, with the exception of Mr.. T1iffree.
In ruling that the plaintiff is not en-
titeld to recover the court says that the
plaintiff did not comply with the writ
ten contract, made with the defendants.
In the case of the defendants. who are
also declared not TO be entitled TO re-
covery, the court rules that the defend
ants could have protected themselves
against loss and damage, and failed to
do so. The court also declares some of
the claims of the defendant to be too
speculative and remote, and for that
reason should not he entitled to recover
thereon. Each party to the case eS-
cepts from the decision of the court ex-
cept Mr.. Tuffree, who is discharged.
The case that has just ben decided
was begun in March, 1903, before Judge
Burnham, in the district court OF this
city. The evidence was not taken until
November, 1903, and during the jan
uary, 1904, term three days were con-
sumed In argument BY agreement 1t
was decided that the court give his de-
cision during vacation. The claim OF
the plaintiff in the action was for $1,000
in royalties for mats manufactured by
the Flexible Flat Steel Mat Company,
now owned and operated by A. IS. Bur-
nell. At the time the royalties We're
claimed, however. e. Tuffree was inter-
ested In the concern. A counter claim
by the t;efen dants in the sum of $3I 900
was filed, by reason of the alleged fail
ure of the McNeely Flat Wire Mat
Company to protect the defendants
against infringement OF patents.
The order OF the court, which was re-
ceived in the city this morning., is as
follows:
by agreement of the parties upon oral
argument and written briefs, and with
the agreement that the same should be
considered and determined In vacation
and the same having been fully consid-
cred and the court being fully advised
in the premises, it is found by the court
that the plaintiff has failed to comply
with the terms and conditions of its
written contract with the defendants
sued upon in this action and that 1t
ought not in this action to recover for
the royalties. for which suit was
brought and therefore the plaintiffs
petition is dismissed and plaintiff ex-
cepts.
at is further found by the court that
upon and for the claims made by the
defendants in their counter claim
against the plaintiffs In part and with
respect to some of the claims made
herein the defendants knew or readily
could have ascertained the failure of
plaintiff or want of compliance with
their contract and could have protected
themselves from loss or damage as
claimed, if any which it was their duty
to do and as to some of the claims OF the
defendants In their counter claim they
are too speculative and remote and the
defendants ought not in good con-
science to recover thereon. And there
fore the counter claim and cause of ac-
ton therein against the plaintiff Is dis
missed and the defendants and each of
them excerpts.
at is further ordered that the plain
tiff pay the costs made by it in this ac-
ton and plaintiff excerpts. and the de-
PENDANTS, other than T.. Tuffree, pay
the costs made by them in this action
and the defendants, except i. Tuffree,
excerpts, and this action as to E. Tuf-
free. is dismissed, and plaintiff ex-
cepts.
Done in vacation in pursuance to
the agreement of the parties hereto this
18th day of May, A. D.. 1904.
&c. w. BURNHAM,
Judge of the Seventeenth judicial
district of Iowa
1t is possible that the case will be
appealed to the supreme court by either
or both pa rites.