Page:Federal Reporter, 1st Series, Volume 8.djvu/837

CALIFOENIA. AETIFICUL STONE PAVIKG CO. V. PERINE. 823 �both cases there -c^-as cutting at the joints by meandjof a trowel dur- ing the process of foriuation. "The testimony of Molitor in his case, it is true, is directly to the contrary, yet his testimony is somewhat impeaiihed, and lam disposed to think that it should be taken with some grains oi allowance.' 'I think, by a careful study of the testimony of Schalike alone,who is Molitor's foreman and one of his principal wit- hesses, it is apparent that they did do cntting with the trowel. He euperintended the construction of the pavement which was laid in alleged infringement of the complainant's patent, and he admits that there -was cutting. Although he once or twice atates that there was no use of the trowel for cutting, yet, under cross-examination, being piressed by complaiuant's oounsel, he says he cannot tell whether.it twas eut through or noti cannot tell how deep he eut; is at a loss ta.tellwhat was done in that regard. Still, taking his whole testimoiiy together, it is manifest therefrom that he did eut with a trowel. . ; 'j .; . �There are some other witnesses, it is true, whose testimony goes to support that of Molitor; but, on the other hand, the complainant's witnesses positively and distinctly contradict them. ■ Several of these witnesses of oomplainant appear to be men of intelligeiice, capable of observing, some of them having had experience in the same business ; and they allvisited the place where the respondent's pavement was being laid, expressly to observe the manner in which the work was done, and examined it uuder such cireumstanees as would be likely to impress upon their minds the respondent's, mode of operation and construction." They would not be likely tp.be mis- taken, and if they misstate the facts they must be wilfully at fault; and they all testify distinctly that there was cutting in the joints dur- ing the process of formation. Pj3om the testimony of these witnesses and of Schalike^ and from an examination of the stones which Were afterwards taken up from respohdent's pavements, referred to and pre- sented in evidence, l'amsatisfied there wassuch cutting in the Mol- itor pavement, as well as in that laid, by Perine. . , �The process of laying the pavements in question is substantiallythis: One section having been formed, a scantling or moi^ld is laid down par- allel with the edge of the completed section, and at a, distance of the desired width of the blocks, and the bottom course of courser material is put in, to the depth of about three inches, and tamped down solid, its thickaess' heiag reduced by the tamping about half an inch That being allowed to partially set, a trowel is afterwards ;Usedto ■ont out the blocks into the proper lengths, the cutting of the trowel i)eing to a greai^r or less depth, according to. the chayact^j; ef thip ��� �