WASHBURN & M012N MANUF’G oo. v. GRINNELL WIRE 00. 29
rected to this matter, yet I cannot find any satisfactory and con-
vincing testimony of any invention prior to the forepart of 1874. I
mean, of course, outside of the testimony of the two Merrills. What
they did or what they invented in 1873 rests almost exclusively on
their unsupported testimony. , They say they did not disclose what
they had invented because they desired to obtain a patent, and did
not know the exact procedure therefor. It is obvious that the condi-
tion of the country in which the Merrills lived, being a timber country,
would not attract their attention to the necessity or value of wire
fencing, and that matters outside of home surroundings must have
first suggested the question to them. Putting that significant fact
together with their undisputed silence in reference to their experi-
ment and inventions, and ignoring all the contradictory and opposing
testimony, I cannot think that it is at all satisfactorily shown that
prior to October, 1873, when Mr. Glidden made public by his appli-
cation his invention, these Merrill brothers had devised and con-
structed a fence wire of similar form. Obviously, where by one man
a public disclosure is made of his alleged invention, in a given month,
he who claims that during that or the prior month he invented the
same thing, should make the matter of time and the certainty of the
invention clear and distinct, and at the same time furnish satis-
factory explanation of his concealment of the same. I do not think
this has been done by the Merrill brothers, and while it is doubtless
true that in the forepart of 1874, and possibly in 1873, they were _
experimenting with different forms of barbed wire, and while there is
no positive testimony that the one visiting his brother in Illinois in
the summer of 1874 there saw any specimen of the Glidden wire,
yet the combination of circumstances is such as to leave a very strong
impression on my mind that there this particular form was Hrst sug-
gested to the Merrill brothers. At any rate, I do not think a prior
invention is clearly shown.
The remaining fence is what is called the "Chester D. Stone Fence,"
and this is the one which has left in my mind the most doubt. The
facts are these: Chester D. Stone, from 1870 onward, lived a few .
miles from the village of Delhi, in this state, and within half a mile
of the line of the Chicago, Milwaukee & St. Paul Railroad. His
- brother-in-law, a man by the name of Bidwell, in 1870 and 1871
rented a piece of land about three-quarters of a mile from Stone’s
residence. Around that tract was a smooth wire fence. Mr. Bidwell
went away and left the tract in charge of Mr. Stone. Prior to its in-
closure with this wire fence, it seems a traveled way had run across
the north-east corner. After its inclosure this fence at the north-east
corner was frequently broken down, and Mr. Stone testifies that in
1871 he barbed the wire in this way: Taking a number of staples,
and with the assistance of a son of Mr. Bidwell, a boy of six or seven
years of age, he coiled these staples in the form of a barb around the
fence wire. The instruments which he had were a hammer and a