Page:Federal Reporter, 1st Series, Volume 6.djvu/907

 PUTNAM ». HOLLBNDKE. 895 �from the spring of 1874. For three years from 1876 it Btood unused onder bis coanter. Sotuetime in 1879 — tha piece of India-rubber on the stopper having before that time been lost from it, but vfhen or where does not appear — the bottle and wbat remained of the structure, in the state in which they are now presented, were putinto anold trunk out of doors, under stairs leading from the saloon to the yard, with other bottles for which he says he had no use, and which he placed in the same trunk at the same time. There it remained untU September, 1879, when the defendant Fritz Hollender accidentally learned about it from Otto. Forten- bach says that Otto had Schlesting stoppera and opened them with a separate lever before he, Fortenbach, saw the Otto stopper at Otto's saloon in the spring of 1874 ; and that Otto then said to him, in reference to the latter, that it was handier than using the separate lever. It undoubtedly was, and the new stopper was one to instantly' replace corks; and the Schlesting stopper, if a complete and perfeot stopper, capable of closing the bottle securely and tightly, for hand- ling and transportation. Otto was a locksmith, and had a locksmith's shop on his promises, and with the same tools with which he had made this structure he could have readily made others like it, if this were a successful bottle-stopper, in the sense above stated. Ail that Fortenbach says about it is that, aocording to bis judgment, it worked well. Kern says it worked well, and was better than ail the corks they had before, and that before they had it they had nothing but corks. Krause says that it seemed to operate "good." Gieb- ner says that it operated "quite well," and that the rubber closed it "quite well." The above is ail there ia from the witnesses who saw the structure that gives any idea as to the eflfectiveness of the stopper. The evidence is wholly defect- ive and insufficient. But, besides, the testimony as to a trial now of a structure made on the part of the plaintiffs as nearly as possible like the original structure, with a disk of rubbei elightly thinner and rather more flexible than the rubbei disk which Otto says he used, and the testimony as to thf ��� �