As to the testimony of Wachenschwenz and Rumph in regard to the machine and its use, it is claimed that they had been coached, and had seen the larger machine before testifying. There is no evidence of either. A model of the larger machine was exhibited to both when testifying, and in describing the smaller machine each, in one instance, referred to said model. Their testimony presents no evidence of artificiality. Then, as to the testimony of the defendant W. E. Buser, it is claimed that its value is affected by certain statements made by him under oath, which are claimed to be contradictory and inconsistent with his testimony herein, and by certain actions on his part. The statements relied on are one of those contained in his affidavit to his application for patent No. 711,382, and one of those contained in that portion of his answer hereinbefore referred to, and are as follows: That in the affidavit being that the improvements in tufting machines described and claimed in the annexed specification had not been in public use for more than 2 years prior to the application; and that in the answer, that the machinery and apparatus which the defendants were then using had been used by them for 22 years last past. We fail to see any contradiction in those two statements, or any inconsistency of either with his testimony. The statement of the affidavit is simply that the improvements in tufting machines described and claimed, which were sought to be patented, had not been in public use for more than 2 years prior to the application. Nothing is said as to the machine itself, to which the improvements related. As to the meaning of the statement in the answer, we have heretofore indicated our view. It is not that the identical machinery and apparatus, which the defendants were then using, had been in use by them for 22 years last past. This was not true, and the defendant could not have intended to make a statement to that effect. What was meant was that machinery and apparatus substantially, or in all important particulars, like that then in use by them, or embodying substantially or in all important particulars the same ideas, had been so in use by them. So construed, said statements are consistent with each other and with said defendants' testimony. It is only by construing the statement of the answer as meaning that the identical machinery and apparatus which the defendants then had in use had been so used by them that any trouble arises, and the inconsistency it brings about is, not between that statement and that of the affidavit, but between it and said defendants' testimony.

Then as to the actions of said defendant relied on as affecting the value of his testimony. They are as follows: His purchase of the Kelly machine, hereinbefore referred to; his visit to a licensee of plaintiff at Columbus, Ohio, in the early spring of 1900, to see its machine, with the ostensible purpose of determining whether he would buy one; his efforts at concealment from plaintiff that he was using a tufting machine and its character; his not disclosing to his attorney, who obtained patent No. 711,382, the fact as to smaller and older machine; and his treatment of one Edward J. Meyer, a former employé of defendants, who had furnished plaintiff in June, 1902, just before suit was brought, an affidavit as to the character of machine they were using. It is urged that it is improbable that defendants

would have purchased a Kelly machine, or that said defendant would have visited Columbus, Ohio, to see plaintiff's machine, with a view to purchase, if the defendants already had a machine. It would seem that said defendant's visit to Columbus was only ostensibly for the purpose of determining whether he would buy one of plaintiff's machines, and that such was not his real purpose. He never negotiated for said machine, and though plaintiff, after being informed by its licensee of his visit, wrote defendant four letters about buying one of its machines, he never received any answer thereto. But plaintiff proved itself that about this time defendants had a machine. It proved that on the occasion of a visit of its president to Columbus, in June, 1900, he inquired of said defendant's nephew, then there, what kind of a tufting machine defendants were using, who said that they did not have any, and when he left him plaintiff's licensee's son said:

"That young fellow is a liar. I was in their factory, and saw the tufting machine, and saw a machine exactly like ours."

What said defendant's real purpose, in wanting to see plaintiff's machine, was, is not disclosed. He was not asked about it on crossexamination. It was not proven by plaintiff until after he had testified. And as soon as plaintiff had taken its testimony, the taking of proof was closed on its motion, and a motion on defendant's part to enlarge the time for taking testimony to rebut the testimony taken by plaintiff was overruled. So that said defendant has never had an opportunity to explain the purpose of these visits. He was asked about the purchase of the Kelly machine on cross-examination, and his explanation thereof was that the solicitor for that machine called upon him to sell it to him, and asked $200; that in response he said he would not give him $50 for it; that afterwards the solicitor came to him, and claimed that he had offered $50, and wanted him to take it, and threatened to sue him if he did not; and that, in order to avoid a lawsuit, he purchased it, and defendants had never used it.

As to said defendant's efforts at concealment from plaintiff that he was using a tufting machine and its character, what was done in this. line was this: Upon a call from plaintiff's president, after he became suspicious that defendants had a tufting machine, he refused to tell him what they had or let him in the factory, and two men, hired by plaintiff to get employment in defendants' factory for purpose of as certaining what kind of a machine he was using, could not get in. It is urged that, had the facts been as defendants claim them to have been, said defendant would not have wanted to conceal such knowledge from plaintiff. All explanations from said defendant on this score were cut off by the order closing the testimony heretofore referred to. It may have been due to not knowing defendants' rights, or a desire. to conceal the improvements for which said patent was then in contemplation or pending, or to the ordinary business jealousy of concealing from a rival what one is doing.

As to said defendant not telling his attorney, who obtained No. 711,382 for him, about the smaller and old machine at the time he employed him to make his application, there is this to be said: There is no direct evidence that he did not. On the contrary, there is direct

evidence that he did. Said defendant so testifies. The sole evidence relied on as showing that he did not is a letter written by him to said attorney after this suit was brought. In that letter he tells him about the machine. Appellee's counsel contends that he tells it as if he had never mentioned it before. There is some basis for this contention, but not sufficient, we think, to overbalance his testimony that he had theretofore mentioned it. Besides, the circumstance of his not telling said attorney is not of much weight in the case. The patent was only for certain improvements on the machine, and there was not much occasion for his giving him a detailed history of it.

And, finally, as to his treatment of said Meyer. The plaintiff, through its president, was seeking evidence that defendants were using a tufting machine infringing its patent. It had much difficulty in doing so. Efforts made in this direction have been heretofore referred to. Finally, in Chillicothe, it came across said Meyer, a former employé of defendants, who began to work for them at the age of 15 in the year 1888, and worked for them almost continuously until 1898, when he left, returning again in 2 or 3 years, and working until about 3 months before suit was brought, and obtained an affidavit from him that defendants were using a tufting machine, as to its character and the amount of work being done with it, on the basis of which this suit was brought. It obtained this affidavit in consideration of a written pledge to provide him with a job in Chicago, which soon afterwards was complied with. Thereupon said defendant had Meyer indicted for perjury and brought back to Chillicothe, and during the few months that he was there obtained two affidavits from him, explaining the circumstances under which the former affidavit had been obtained, and repudiating its statements, and causing him to send letters to plaintiff soliciting money, with a view to getting a hold upon it. This is Meyer's account of matters. Meyer had stolen a contribution box from a church in Chillicothe, and committed burglary there, about the time he began to work for defendants, and at the time he figures in this case he was addicted to drinking. In view of his history, of his having been bought with a job to give said first affidavit, of his giving contradictory affidavits, and of his suffering himself to be made a tool to obtain money from plaintiff to its hurt, according to his own account, his testimony is to be received with great caution, if, indeed. any reliance is to be placed on it at all.

The defendants were cut off by the order heretofore referred to from offering any rebuttal evidence. But there would seem to be no doubt that said defendant procured said indictment for perjury and obtained from Meyer said two affidavits; they being introduced in evidence by defendants on his cross-examination. In procuring the indictment it is possible that a wrong was done Meyer, and certainly the two affidavits were untrue-one in so far as it stated that many of, and the other in so far as it stated that all, the statements in the affidavit given plaintiff were false. On the contrary, said affidavit was in the main true. It related almost entirely to the character of the tufting machine which the defendants were and had for three years past been using, and the work that was done with it and its statements in regard thereto coincided with said defendant's own testimony herein..

This conduct on his part is to be condemned. It was a reprehensible effort to destroy a possible witness against defendants in their litiga tion with plaintiff. It was possibly a case of fighting the devil with fire, and is an instance of the length to which litigants will sometimes go in order to overcome their adversary. Yet, notwithstanding all this, we do not deem it sufficient to weaken the unhesitating conviction, induced by the evidence heretofore recited, that said small machine was made and used as it tends to show. It is just as possible that said defendant's conduct was due to the feeling of uncertainty that many litigants have as to the outcome of the litigation in which they are engaged as to any consciousness that said machine was not so made and used.

Besides these considerations, there are two others relied on as affecting the force of said evidence. One is the great improbability that said defendant could, as the result of one effort, have invented said machine, or that, if he had, he would have failed to realize its great value, as he did in confining its use to himself and not having it patented and putting it on the market. According to plaintiff's testimony it is a highly valuable machine, and the effect of its machines constructed on the same lines was to revolutionize the art of making tufted work. Before they came upon the market-i. e., prior to 1894-all tufted work was made by hand. By means of said machines 30 to 40 per cent. more work is enabled to be done than was formerly done by hand, and unskilled labor can do the work now that was done before by skilled. Here, as in case of the other facts presented by plaintiff's testimony, all light has been shut out that might have come from the opposite side. It is thought remarkable that defendants did not realize the great value of said machine, and still more so that by a single effort he should have invented that which it took the combined efforts of two inventors, Pitner and Freschl, over a number of years, by a series of steps, to produce. The first step was that embodied in the first Pitner patent, No. 511,649. It had the mold board, with pockets and holes in its base at the corners thereof, but was without corner posts and plaiters for forming plaits and holding them in place whilst the moss was being filled in, and hence was impractical. Then came the second Pitner patent, No. 577,809, with the corner posts and plaiters, thus overcoming the defects of the prior patent. But it had to be taken from the press and to a bench for completion of the work. Then came the first Freschl patent, No. 592,508, in which the mold board was held elevated over the pin board by cams whilst the cushion was being made and compressed, and then by removal of the cams was allowed to descend and force the tuft buttons, held in place by prongs on ends of posts of pin board, into place. And finally came the second Freschl patent, reissue No. 11,778, which it is claimed put tufting in most satisfactory form, dispensing entirely with a separate pin board. This perfected machine, according to defendants' claim, was produced by said defendant at one effort, or, as appellee's counsel puts it, "from the head of this man there sprang, 'Minerva like,' the idea of the fully developed machine." All that is claimed as to the strangeness of this happening, and as to the improbability thereof, and that the value of the machine was not realized, may be conceded, and yet this circum

stance does not weaken the force of said evidence. An improbable fact, properly verified, is not to be rejected because of such improbability.

The other consideration referred to is that in the first Pitner patent the term "follow board" is applied to one of the elements of the machine described therein, and according to said defendant that same name was given by defendants to the same element years before. It is thought to be peculiar and remarkable that two different persons, acting independently, should give the same name to the same element of the machine. It is a very appropriate name, expressive of the fact that it followed the other operations in the process of making the cushion, and it would seem not at all unlikely that it should occur to different persons without suggestion by one to the other. If, however, it is improbable that this should happen, the same suggestion is to be made here as in reference to the foregoing consideration.

This exhausts all the considerations relied on by appellee as affecting the force of said evidence in support of said defense. It has been said that there is no opposing evidence. But it may be thought that there is one piece of evidence that may be said to oppose said favoring evidence, and some notice should be taken of it. That is the testimony of said Edward J. Meyer, who testified on behalf of plaintiff, that whilst he worked for defendants, between 1888 and 1898, they used no tufting machine, but made all tufted work by hand, and it was only after he returned, upon an absence of two or three years, in 1900 or 1901, that they used a machine, to wit, the large machine. This evidence opposes no evidence introduced on behalf of plaintiff, unless the evidence of said defendant as to the use made of the small machine be construed to cover time after 1888. In view of the considerations heretofore referred to, affecting the credibility of this witness, possibly his testimony as to this fact should be given no consideration. Yet it is possible for even such a witness to tell the truth, and it is met here only by the indefinite and somewhat ambiguous testimony of said defendant as to the length of time that the small machine was used. Besides, it is somewhat significant that defendants introduced no witness, other than said defendant, by whom it attempted to prove any use of that machine after the year 1886. It was not material to prove any use of it after the date of plaintiff's patent. Nor, with it proven beyond a reasonable doubt that said machine had been in existence and use from 1880 to 1886, was it material to prove its use during the 11 years between 1886 and 1897. But, with the fact of its prior existence and use contested, it is rather strange that defendants did not strengthen their case by proving its existence and use by the testimony of persons in its employ during that period of 11 years, if it is a fact it had been then used.

It must therefore be conceded that it is possible that it was not used, as Meyer testifies, from 1888 to 1898, and that, so far as tufted work. was then made by defendants, it was made by hand. One can hardly say that he has an unhesitating conviction that Meyer is not telling the truth in this particular. In this connection it is to be noted, further, that it was in March, 1898, that plaintiff began putting its tufting machines on the market and sending its circulars and booklets setting