Page:Federal Reporter, 1st Series, Volume 8.djvu/921

 8HIBLEY V. SANDBBSON. ©07 �Koelscliwere both of them in the employ of Dorflinger in 1868 and 1859. EuBsell testiiies that as early as 1865 Mayer & Koelsch made lamp chimneys for Henry Eussell & Co. almost preeisely like No. 5, but with a shorter neck thanNo. 5, and with a lip at the base; that they made that shape for two years; that T. T>. Moore & Co., a firm with which he (Eussell) was clerk, bought in 1860 and 1861, from Dorflinger & Co., chimneys like No. 5, without the lip, which were used for the Dietz burner ; and that Moore & Go. had such burners made for two years or more. When asked to give the names of parties to whom they were sold, he names Stanford & Co., of San Francisco and Mel- bourne, but no others. He testifies that those Eussell & Co. had made by Mayer & Koelsch were fitted for other kinds of burners than the Dietz burner. None of these old chimneys are produced. No books or papers are produced containing any record evidence as to the shapes of these old chimneys. No testimony of any customer who bought any of them from Dorflinger, or from Eussell & Ce, is produced. Everything depends on unaided memory as to exact shape. Dorflinger, although his name is set up in the answer, was not pro- duced, and no sufficient excuse was shown for not producing him. �Testimony to rebut this evidence of Mayer and of Eussell appears in the case. Schneider, who saya that he is acquainted with all chimneys which have been sold largely since 1861, says he never saw one like No. 5 ; that he sold the Diotz humer in large quantities, and chimneys for it ; and that a bulb chimney was used for it, and no other chimney, so far as he knew. Tripp, familiar with chimneys from 1863, says he never saw a chimney like No. 5 before or duriug 1865; that he is familiar with the Dietz burner, and never saw any chimney like No. 5 sold in connection with that burner; and that prior to 1867 the shape the nearest he saw to the shape of No. 5 was a bulb chimney, with a lip instead of a neck. Dietz, who made the Dietz burner, says he never knew of chimneys like No. 5 being sold in connection with it. Brox, who worked blowing glass for Dor- flinger, in Dorflinger's factory, from 1857 tO 1860, and from 1861 to 1866, says he does not remember seeing there a chimney like No. 5, with a square shoulder; that Mayer was employed in making pots for Dorflinger, in the pot-room ; and that the only chimneys Dorflinger made were bulb chimneys and straight tubes. Morey, a dealer in lamp chimneys from 1858, says that he does not know any chimney like No. 5, and that he never saw any chimney like Crosby's before Cros- by's was introduced. Crosby, the inventer, acquainted with the lamp and chimney busmess since 1855, in Boston, New York, New Bedford, ��� �