Matilda Gresham.

Life of Walter Quintin Gresham, 1832-1895 (Volume 2) online

. (page 8 of 38)
Online LibraryMatilda GreshamLife of Walter Quintin Gresham, 1832-1895 (Volume 2) → online text (page 8 of 38)
Font size
QR-code for this ebook


the Pullman patent was suggesting a cloud on the integrity
of the Sessions device. The law is, that a grant of letters
patent from the government can run only to the patentee
or his assignee. The application for the patent must be
in the name of the patentee. If Pullman was the real
inventor, and not Sessions, a fraud had been committeed
and the patent was void.

Meantime a suit based on the Pullman patent had been
commenced in the Circuit Court for the Eastern District
of Massachusetts by the Pullman Company against the
Boston & Albany Railroad Company and W. S. Webb,
president of the Wagner Palace Car Company.



PULLMAN PALACE CAR PATENT CASES 525

October, 1890, Judge Colt sustained the Pullman patent
and issued an injunction against the Boston & Albany
Company and President Webb. Thereupon the Pullman
Company pressed its claim that, as a matter of comity, it
was entitled to injunctions in the two suits still pending
in the Northern District of Illinois.

George Payson was one of the counsel who appeared
before Judge Colt for the Wagner Company. Benjamin F.
Thurston did not appear in that litigation for the Pullman
Company, and did not appear in the second hearing in
Chicago. The absence of Mr. Thurston, Judges Gresham
and Blodgett construed as most significant. "Thurston
does not uphold the new Pullman patent, and he abates
not one jot or tittle of what he said in favor of the validity
of the Sessions device" — a man of honor before all else.
Benjamin F. Thurston's obligation was to the court that
had followed his argument in the Sessions case, and to his
profession and the truth.

On the announcement of Judge Colt's opinion, the spec-
ulators sold the Pullman stock down, and Judge Colt's
brother. Colonel Richard Colt, who had loaded up with
Pullman stock, lost a large amount of money.

November 11, 1890, after hearing the argument on the
Pullman Company for an injunction, the case was taken
under advisement by Judges Gresham and Blodgett.
January 20, 1891, they made their decision, and again
Judge Gresham wrote the opinion. After reciting what
had occurred in Judge Colt's court, the opinion proceeds:

Under the well-established rule of comity, the decree in the
Boston case entitles the complainant to the injunction prayed
for, unless the court which rendered the decree gave a construc-
tion to the Sessions patent at variance with this court's construc-
tion of it.

This court sustained the Sessions patent on the ground that
the equalizing mechanism was capable of keeping the frame
plates in frictional contact, not part of the time, but all the time,



526 LIFE OF WALTER QUINTIN GRESHAM

on sharp curves like those of the Baltimore & Ohio Road, as well
as on tangents. . . . The complainant in that suit, the former
suit before Judges Gresham and Blodgett (and the parties in that
and this suit are the same) , insisted that this was the correct
construction of the vSessions patent. And yet, in the face of its
former ruling, this court is now asked to hold that the vSessions
equalizing mechanism will not keep the frame plates in constant
contact: that in turning curves the plates on the inner side will
touch only on the outer (inner) edges, while on the outer side of the
curve they will not, or may not, touch at all. . . . The same
solicitors prepared both patents and drawings; and, although
the latter are exactly alike, it is claimed that they were intended
to represent two different equalizing devices. The construction
which Sessions now places upon his patent cannot be reconciled
with his testimony in the Sessions suit.

Then the affidavit of George M. Pullman, which had
been filed in the Sessions suit and used on the application
for the preliminary injunction in that case, v^as brought
forward by the judges and commented on. No reference
was made to it by the Wagner attorneys in the second suit.

Part of the Pullman affidavit follows:

These vertical spring buffers project beyond the vertical
planes of the cars, so that on the coupling of the two cars the
adjacent frames of the cars compress the springs which back
them, and therefore the faces of the plates are held against each other
in frictional contact. The result of this construction is that the
tendency of the cars of a train, when running at high speed, to
have oscillations or vibrations set up, is almost entirely dissi-
pated. . . . As an evidence of the steadiness with which trains
run, and their freedom from that oscillatory movement which
belongs to all other descriptions of trains when running at high
speed, I will state that there is provided in one of the cars of the
train a barber's room. The barber's chair in this room is daily
occupied by persons who desire to be shaved upon the train ; and
I state that there is but little more danger or risk in undergoing
shaving at the hands of the barber with a common razor on this
train, when running at forty miles an hour, than there would be
in an ordinary barber's shop in Chicago. I have found that the



PULLMAN PALACE CAR PATENT CASES 527

oscillation of the cars has become greatly diminished in conse-
quence of the application of the spring friction plates in contact,
interposed between the superstructures of adjacent cars of the
train, and that the upper berths of sleeping cars are no longer
objectionable on account of the swaying movement.

Then the opinion proceeds:

The Sessions patent, as we are now asked to construe it,
would fall far short of accomplishing these beneficial results. In
his original application Pullman claimed the vestibule and the
bellows. He did not there claim what was finally allowed as the
distinguishing feature of his patent. In none of his numerous
original claims did he embrace the oscillating motion of the arch-
plate and footplate. It may be fairly inferred that his first
application was prepared with reference to the disclaimer of the
vestibule and bellows in the Sessions application. His original
application and claims were all cancelled, and more than a year
after the date of his first application he filed a new specification
and claims, and it was in these that he first claimed the equalizing
mechanism, with its motions and restraints of motions. This
application was rejected February 9, 1889, the commissioner
holding that the applicant had not invented a single element;
the * particular equalizer' being shown in the Janney and Sessions
patents, and the frame plate in the latter patent. . . . Some
weeks later, the application, which had been rejected on the ground
that the Sessions patent showed the frame plate and the 'partic-
ular equalizer,' was allowed, and the patent in suit issued. On
April I, 1889, Pullman made and forwarded his affidavit to the
Patent Office, in which he stated that he had reduced his inven-
tion to practice on a train of cars before Sessions filed his appli-
cation. Some weeks later, the application, which had been re-
jected on the ground that the Sessions patent showed the frame
plate and the 'particular equalizer,' was allowed, and the patent
in suit issued. The affidavit did not say that Pullman was the
first inventor, and it did not follow that, because he first
reduced the invention to practice, he, and not Sessions, first
perfected the invention. It did not deny that the Sessions patent
showed the 'particular equalizer'; on the contrary, its presenta-
tion amounted to an acquiescence in the correctness of the

34



528 LIFE OF WALTER QUINTIN GRESHAM

commissioners' ruling on that point, and a claim that Pullman
was entitled to a patent because he was the first inventor.

We have referred to the fact that the parties to this suit
were the litigants in the Sessions suit. In the latter suit the
complainant obtained a decree on the theory that Sessions was
the first inventor of the equalizing mechanism for which a patent
was finally granted to Pullman. That decree remains in force.
It is chiefly on the testimony of vSessions in this suit and the
Boston suit that this court is now asked to hold that he was not
the first inventor. That testimony cannot be reconciled with
material portions of the testimony of the same witness in the
Sessions suit. To what extent, if at all, the decree in the Sessions
suit is conclusive upon the complainant in this suit is a question
which we prefer to reserve until the final hearing. Injunction
denied.

There was perturbation from which Mr. Pullman and
his lawyers never recovered. Newspaper editions contain-
ing that last decision were bought up and destroyed. The
opportunity that was thus given the Wagner Company
and the secret committee of patent lawyers who represent-
ed the railroads of the country — the Vanderbilt interests
including Chauncey M. Depew, who had criticized the
opinion in the Sessions suit — to question the cloud that
George M. Pullman had put on the Sessions patent, was
not taken advantage of. The Pullman and Wagner com-
panies settled all their differences and consolidated under
the name of the Pullman Company. Railroad men who had
assailed the Sessions patent bought stock in the Pullman
Company. Never again did a Pullman lawyer, a Wagner
lawyer, or a lawyer for the Western Railroad Association
enter the United States Circuit Court for the Northern
District of Illinois in the lost Pullman- Wagner case. The
case stood as it did the day the preliminary injunction
was denied, January 20, 1891, until April 30, 1900, when
on the general call of the docket no one appeared either for
the Pullman or the Wagner Company or for the Govern-
ment, and the suit was dismissed for want of prosecution.



PULLMAN PALACE CAR PATENT CASES 529

The fact that the defendants and the patent attorneys for
the Western Railroad Association did not avail themselves
of the court's offer to re-litigate the validity of the Sessions
patent, suggests two inferences: one that the second suits
were collusively framed between the Pullman and Wagner
companies, as often happens when two combinations are
fighting for a patent — when one is defeated in the first
instance, instead of continuing the contest, they unite and
endeavor to extend the monopoly thus obtained; second,
the judgment in the first suit, supported as it was by the
opinion in that case, and Thurston's absence from the second
suit, could not be overthrown. In legal ability and knowl-
edge of patents Judge Blodgett was without a superior on
the Federal bench.



CHAPTER XXXIV
IS "EQUITY A ROGUISH THING?" ^



THE CELEBRATED ANGLE CASE — H. C. ANGLE UNDER-
TAKES TO CONSTRUCT THE ST. CROIX RAILROAD FOR THE
PORTAGE COMPANY — PLEDGES HIS PROPERTY TO CARRY
OUT HIS CONTRACT — THE OMAHA AND ST. PAUL RAIL-
ROAD COMPANIES COVET THE RICH TIMBER LANDS GRANTED
TO THE PORTAGE COMPANY BY THE GOVERNMENT —
SENATOR SPOONER's VICIOUS ADVICE TO THE OMAHA
COMPANY — THE ST. PAUL RAILROAD SUES THE OMAHA
COMPANY FOR ITS SHARE OF THE ST. CROIX LANDS —
ACTION OF THE WISCONSIN LEGISLATURE IN THE MATTER
— angle's widow sues the portage COMPANY BEFORE
JUDGE GRESHAM — WINS THE SUIT WHICH IS RETRIED BY
JUSTICE HARLAN — HIS DECISION.

T CAME to know Mrs. Angle after she had secured a
■*■ judgment in an action at law before a jury and Walter
Q. Gresham as the trial judge, in the United States Circuit
Court for the Western District of Wisconsin, and while
she was seeking to enforce that judgment or redress on the
equity side of that court, in the Supreme Court of the
United States and the United States Court of Appeals for
the Seventh Circuit. I saw her in Washington when Gen-
eral Charles Ewing, General Sherman's brother-in-law, came
to argue her case. I saw her in Chicago after the court of
equity — the guardian of the infant, the orphan, and the
widow — had turned her out penniless, and confirmed as
a gift, in consideration of the construction of a railroad,
timber lands worth $2,000,000 to a railroad corporation.
Towards the construction of this railroad a jury found her
husband, H. C. Angle, had contributed $341,000. Justice

iSee page 8ii.

530



IS "equity a roguish thing?" 531

Harlan reduced this amount to $200,000. Small and del-
icate, she possessed the courage and fortitude of the tigress,
and although broken in health at the end, claimed she had
proved Sledon's saying, "Equity is a roguish thing."

In impoverishing herself, Sarah R. Angle laid bare a
condition of affairs that helped, together with other dis-
closures, to bnng about reforms in the executive, legislative,
and judicial branches of the government. Tried under the
shadow of the Wisconsin University and the dome of the
State Capitol, the case had the widest publicity. For a
time the public mind was assuaged by the report that
was deftly circulated, that after the courts of equity had
turned the widow from their door, the corporations had
granted her a competency for life. Of course this report
was untrue.

The gibes and sarcasm of the English poets and philo-
sophers helped develop the chancellor's conscience. "In
law we have a measure, but in equity it is like the chancel-
lor's foot. It is long or short, according to the man, and
then it is not always the same in the same man."

Stripped of legal verbiage and technical descriptions of
lands, the following is the case: By Acts of Congress of
June 4, 1856, and May 5, 1864, 400,000 acres of timber land
were granted to the State of Wisconsin to aid in the con-
struction of a railroad running northwest from St. Croix
River or Lake to Lake Superior, about sixty-five miles in
length, with the proviso, however, that if the railroad was
not completed within a period of ten years, the land
should revert to the United States. At that time it was
not the policy of the executive branch of the government of
the United States to insist on forfeitures of land grants
made to aid in the construction of railroads, if the con-
struction was not completed within the time limit. Until
the executive branch of the government acted, the Supreme
Court had held that the limitations in the land grants
Congress made to the States to aid' in the construction of



532 LIFE OF WALTER QUINTIN GRESHAM .

railroads were not self-acting. So long as the executive de-
partment did not say, "Your time has expired," the license
to the State "and its grantee" to build the railroad and
earn the land grant continued.

By an act of the Wisconsin legislature of March 20,
1865, and by subsequent acts, the State of Wisconsin con-
veyed these lands to the Chicago, Portage & Superior Rail-
road Company, hereinafter called the Portage Company,
and gave it until May 2, 1882, to complete the St. Croix
Railroad. The Portage Company contemplated a line to
Chicago, and to that end gave a mortgage to the Farmers
Loan & Trust Company to secure an issue of $1,000,000,
with the proceeds of which it expected to construct the
Portage and Chicago line. Only a small portion of these
bonds had been issued when the panic of 1873 stopped their
sale and suspended practically all railroad construction.

The revival of business came in 1879 and 1880, and
on August I, 1 88 1, the Portage Company entered into a
written contract with H. C. Angle to construct the sixty-
five miles of railroad of the St. Croix line. The lowest
value that was ever placed on the timber on the 400,000
acres granted for the construction of this line was $2,000,-
000. Angle had had large experience as a railroad con-
tractor and was a man of means.

At this time, and for several years prior thereto, the
Chicago, Minneapolis, St. Paul & Omaha Railroad Com-
pany, hereinafter called the Omaha Company, was a rail-
road corporation operating more than a thousand miles of
railroad in the States of Wisconsin, Minnesota, and Ne-
braska. It had been favored in the construction of its line
by grants of government lands. Henry H. Porter of Chicago
was its president; Philetus Sawyer of Oshkosh, Wisconsin,
one of the United States senators from the State of Wis-
consin, our old neighbor and friend in Washington, was a
member of its Board of Directors and its vice-president;
John C. Spooner, its general counsel, resided in the St.



IS "equity a roguish thing?'' 533

Croix neighborhood, at Hudson, Wisconsin. The state of
public morals in Wisconsin was such at that time that
Mr. Spooner could be at the same time a lobbyist and a
successful candidate for the United States Senate, to which he
was elected January 15, 1885. Later a change came over the
public, if not over the judicial conscience, and with it came
Mr. Spooner's retirement from the United States Senate.
One of the contributing causes to both results was Mr.
Spooner's connection with this celebrated Angle case.

The Chicago, Milwaukee & St. Paul Railroad Company,
hereinafter called the St. Paul Company, was another Wis-
consin railroad corporation owning a great railroad originat-
ing at Milwaukee, extending to Chicago, and from Mil-
waukee through the Northwestern States adjacent to Wis-
consin — now running to the Pacific Coast. Alexander
Mitchell, its president, and John W. Cary, its general coun-
sel, resided at Milwaukee.

Both the Omaha and St. Paul companies had long
looked with covetous eyes upon those 400,000 acres of
valuable timber lands and the line to Duluth and Superior
via St. Croix, and many were the attempts prior to 1881 to
wrest them from the Portage Company. When the Omaha
attorneys in the Wisconsin legislature — in those days it
was the practice for the corporations to have attorneys on
their payrolls in all the legislatures, even in the national
Congress — would introduce a bill to revoke the grant to
the Portage Company and confer it on the Omaha Com-
pany, the attorneys for the St. Paul Company in the legis-
lature would object and the bill would not pass. When the
St. Paul Company's attorneys attempted to pass a like
measure, the Omaha's attorneys would block them.

After Angle entered into his contract of August i,
1 88 1, with the Portage Company, he vigorously prosecuted
the work of constructing the sixty-five miles of railroad.
He made great progress during the fall of that year. But
in order to do so, he was forced to pledge his individual



534 LIFE OF WALTER QUINTIN GRESHAM

property and credit. That 400,000 acres of valuable timber
land, the title to which would vest absolutely in the Portage
Company on the completion of the line, seemed to justify
this action on Angle's part. That the Omaha might buy
off the St. Paul Company and part of the officers of the
Portage Company, tie the hands of the balance with an
injunction, and then secure the approval of all the judges
except one who came in contact with the case, was not
considered within the range of possibilities.

John C. Spooner later testified that in the very last days
of December, 1881, or the first days of January, 1882, he
met Angle at the Grand Pacific Hotel in Chicago. From
Angle, Spooner learned that the Portage Company was
financially embarrassed, that it was not meeting its payments
to Angle, who was advancing his own money to carry on
the construction, and was making desperate efforts, al-
though hard pressed, in the dead of winter, to comply with
his contract with the Portage Company. All these facts
Mr. Spooner said he forthwith laid before President H. H.
Porter of the Omaha Company, with the following advice:
That the Portage Company had forfeited the grant of the
land on the St. Croix-Superior line because it had not con-
structed another line, namely, that between Portage and
Chicago, and that the way for the Omaha or Porter's
Company to get the land grant would be to have the legis-
lature, when it met on January 11, 1882, revoke the grant
to the Portage Company and confer it upon the Omaha
Company, although under the existing acts of the Wis-
consin legislature, as we have seen, that grant did not
expire until May 2, 1882.

In the equity suit. President Porter of the Omaha
Company testified that he accepted Mr. Spooner's advice
as sound and proceeded to act on it. But eminently prac-
tical and fearing another contest with the St. Paul Com-
pany before the Wisconsin legislature, Mr. Porter said he
first went to Milwaukee and there, on the loth of January,



IS "equity a roguish thing?" 535

1882, entered into a written contract with Alexander
Mitchell, as president and on behalf of the St. Paul Com-
pany, stipulating that if it, the St. Paul Company, not
only would abstain from opposing the Wisconsin legislature
from revoking the grant to the Portage Company and con-
ferring it upon the Omaha Company, but on the contrary,
by its officers, agents, and attorneys, would aid the Omaha
Company in securing the revocation and confirmation of
the grant to the Omaha Company, that the Omaha Com-
pany would give the St. Paul Company one-fourth of the
land grant and a trackage right over the sixty-five miles
of railroad when completed, on a fair and equitable basis.
Senator Philetus Sawyer and Mr. Mitchell were named
in this contract as the arbitrators to determine any con-
troversies that might arise between the two companies as
to the distribution, as one man said, of the "swag."

At the same time that Porter opened his negotiations
with the St. Paul Company he also went after the Portage
Company. At this time Charles J. Barnes of Chicago was
and had long been a director of the Portage Company and
claimed to represent himself and his uncle, A. S. Barnes of
New York. A. A. Jackson cf Janesville, Wisconsin, was
also a director and since 1872 had been general solicitor of
the Portage Company. Before the Wisconsin legislature he
had helped secure for the Portage Company the St. Croix
grant, and in the season of 1881, with the aid of John C.
Spooner and others, he had prevented the St. Paul Com-
pany from revoking the grant of the Portage Company,
and confirming it in the St. Paul Company. All that the
Portage Company owed, except the few bonds secured by
the mortgage to the Farmers Loan & Trust Company,
the proceeds of which had gone into the construction of
the Portage and Chicago line, and the indebtedness it had
incurred to Angle on the St. Croix line, was $18,000 to
Jackson, $2,000 to I. C. Stone, an attorney of Madison who
had helped Jackson before the Wisconsin legislature, and



536 LIFE OF WALTER QUINTIN GRESHAM

$10,000 to Edward Ruger of Janesville, Wisconsin, for
engineering services. Forty thousand dollars would cover
all the two Barnes's had contributed to the enterprise.
Eighty thousand dollars, Jackson said, in his testimony,
would reimburse himself, the two Barnes's, Stone, and
Ruger.

At this time the Portage Company had outstanding
$2,000,000 par value of stock in the name of Charles J.
Barnes. One million was to reimburse and secure Barnes,
Jackson, Ex-Governor Schofield and others for their ad-
vances to the Portage Company. The other million was
merely held by Barnes to dispose of to raise money for the
company. In short, as to the last million, at least, Barnes
was only a trustee.

January 20, 1882, the Omaha Company, represented by
H. H. Porter and John C. Spooner, entered into a contract
in the name of Ransom R. Cable, one of its directors, with
Charles J. Barnes and A. A. Jackson for the purchase of
$2,000,000 of the capital stock of the Portage Company
standing in Barnes's name, for the sum of $200,000, pro-
vided the Omaha Company succeeded in wresting the St.
Croix land grant from the Portage Company. Should the
legislation fail, then Jackson and Barnes bound themselves
to sell for a song. Of this $2,000,000 of Portage stock.
H. H. Porter testified that at the time he purchased it
through Cable it had no market value and was worthless,
except as it could be made a means of annoyance.

In the case of Oscanyan vs. Arms Howe Company (103
U. S. 261), decided in 1881, the Supreme Court of the United
States said :

Bribes in the shape of high contingent compensation must
necessarily lead to the use of improper means and the exercise
of unlawful influence. ^

This Oscanyan case rests on the scoring Chief Justice
Taney gave one Marshall who was suing the Baltimore &
Ohio Railroad Company for compensation for lobbying



IS "equity a roguish thing?" 537

through the Virginia legislature a bill to give the Baltimore
& Ohio Company, which was a Maryland corporation, the
right to build its line through Virginia to the Ohio River.
What particularly aroused the ire of the Chief Justice in
speaking for the entire court (Marshall vs. B. & O. R. R. Co.,
i6 Howard 341), was Marshall's advice to the Baltimore



Online LibraryMatilda GreshamLife of Walter Quintin Gresham, 1832-1895 (Volume 2) → online text (page 8 of 38)