N. C. Smith vs. Stephen Mendenhall, et. al.
N. C. Smith and J. W. McIntyre entered into a contract with Stephen Mendenhall to purchase the rights to sell “Mendenhalls Patent Loom” in parts of Vrigina. Mendenall had stated that the loom could be worked by a boy of ten and would produce 20 yards of cloth a day. In addition to bonds, he gave Mendenhall a house and lot in Mt. Crawford, Virginia. Two looms were built at the Virginia Penitentiary, which N. C. Smith determined to be “utterly worthless”. He also charged that McIntryre had deceived him and not paid his portion of the bonds. The bonds made by N. C. Smith were transferred to A. C. Bryan, who brought suit for payment of the bonds against him and his father, Abraham Smith, who had provided surety for the original bonds. In February 1857 they were ordered to pay the full amount with interest of the bonds. In March 1857, N. C. Smith then brought suit against Mendanhall, McIntyre, and Bryan to dispute payment of the bonds.
In April 1873 the court ruled in favor of N. C. Smith. The defendants were ordered to pay his court costs and the contract for selling the looms was nullified.
There were further proceedings regarding the debt owed by his father, Abraham Smith. He declared bankruptcy in May of 1873. Orders were issued to take depositions of the other defendants, but they had moved out of state. J W McIntyre was deposed on January 3, 1874 and admitted that he knew the loom was worthless but conspired with Mendenhall to convince N. C. Smith to invest, stating that he would give bonds for half of the payment, but in fact would pay nothing.
Rockingham County Court, Virginia, March, 18572949
To the Honorable John Kenney Judge of the Circuit Court of Rockingham County
Your orator N C Smith a citizen of the county of Rockingham in the State of Virginia humbly complaining respectfully represents that some time during the spring of 1855 a certain Stephen C Mendenhall was in the town of Harrisonburg Rockingham county Virginia, that he had in his possession and on exhibition the model of a weaving loom which he styled “Mendenhalls Patent Loom” and that the said Mendenhall was endeavoring to sell the right to make and sell looms made after said patent for various portions of the United States and that he represented that he had a right to sell and dispose of said patent rights. Your orator was then residing in the town of Harrisonburg and was staying at the same hotel at which the said Mendenhall was, and that he was so far taken in and deceived by the many statements and representations made by said Mendenhall in regard to said loom that he was induced to enter into a contract with a certain J W McIntyre as a partner for the purchase of the right for said looms in the valley and the western counties of Virginia. But before and at the time of entering into said contract the said Mendenhall stated that the loom could be worked by a boy of the age of ten years and that 20 yards of good cloth could be manufactured every day, under these circumstances your orator and the said McIntyre agreed to give for the right in the valley and the western counties of Virginia the sum of $2600, payable in six, twelve and nine months from the 5th day of March 1855, at the request of J W McIntyre your orator agreed that he should give his bonds for one half of the whole sum of $2600 and that he McIntyre would execute his bonds for the other half and accordingly your orator executed his bond for the sum of $1300, payable in six, nine and twelve months from the 5th day of March 1855 with his father Abraham Smith as his security, a copy of said bonds is herewith filed marked A and prayed to be taken as a part of this bill, and your orator was under the impression that McIntyre had also executed his bonds in good faith for a like amount as your orator. At the time that the bonds were delivered to said Mendenhall executed a paper in writing purporting to convey to the said McIntyre. The original of said paper has been sent to Washington for record, and respondent asks ?? to file a copy of said paper as soon as obtained as part of this bill and your orator the right for said patent loom in the valley and in Western Virginia. After the contract was concluded your orator & McIntyre proceeded to have looms manufactured after the patent, but the looms so manufactured proved to be entirely worthless and of but little intrinsic value and this was after they had been made by competent workmen and would not manufacture 20 yards of cloth a day or anything near that amount as represented by Mendenhall. Your orator further represents that the loom had been tried at the penitentiary of Virginia made after the same patent and that it had proved to be utterly worthless.
Your orator further represents that he would not have entered into said contract unless J W McIntyre had gone in as a partner and at the time of the contract your orator believed that McIntyre had entered into the contract in good faith, but he has since learned and so charges that McIntyre entering in was a trick to deceive and defraud your orator and that McIntyre either failed to execute his bonds entirely or that they were again given up to him by Mendenhall without being paid or any part of them. Your orator therefore represents that he has been deceived by the misrepresentation of Mendenhall and was induced to enter into the contract by the deceit practiced upon him by McIntyre.
Your orator further states that after the delivery of the bonds by your orator to the said Stephen C Mendenhall that the bonds were transferred to A C Bryan and that suit has been brought and that at the February term 1857 of the County Court of Rockingham County judgement as obtained on said bonds against your orator and Abraham Smith for the whole amount with interest & costs. A copy of said Judgement is herewith filed marked B and prayed to be taken and read as part of this bill, and that an execution has or will soon be issued upon said Judgement.
In view of the premises and in as much as your orator is without adequate remedy for relief save in a court of equity when all such matters may be properly heard and determined he prays that the said Stephen C Mendenhall, A C Bryan, John R ?? Sheriff of Rockingham county may be ?? and restrained from enforcing the collection of said judgement and execution and to this end that Stephen C Mendenhall, A C Bryan and J W McIntyre & Abraham Smith may be made parties defendant to this bill and that they be required to answer the same under oath and that they and each of them shall answer all and each of them specially interrogated thereto, and that the court will afford to your orator such other and further relief as the matter of his case will entitle him to and is the duty of courts of equity to administer and as in duty bound he will ever pray &c.
N C Smith
Rockingham Court to wit:
This day N C Smith personally appeared before me James Kenny a notary public for the county aforesaid and made oath that the above bill is true to the best of his knowledge and belief.
Given under my hand this 3d day of March 1857.
To the Hon J W ?? Judge of the Circuit Court of Rockingham County
The amended bill of complaint by N C Smith. Smith ?? represents that some years since he filed his bill of injunction in this hon court against Stephen C Mendenhall A C Bryan J W McIntyre & Abraham Smith to enjoin a certain judgment of the County Court of Rockingham therein described for the monies therein alleged. To the said bill still pending before this honourable court & to the ?? & proceedings in sd comes your orator ?? & prays that they may be taken & read as part of this bill. The injunction was awarded as prayed for in said bill & has since been presented by the ??? on by your orator of the bond with security required & the release of ?? at law. But none of the defendants have answered the same, & now by way of amendment & entitlement then to your orator avers that at the time of & before the sale may by the (defendant) Mendenhall to your orator & the (defendant) McIntyre of the patent right to the loom in the original bill mentioned, the said Mendenhall knew that the said loom so patented or intended to be patented was utterly worthless, that it would not be worked by a boy of the age of ten years & that it could not by the most skillful use be made to manufacture twenty yards of good cloth per day nor anything like that quantity. The representation of said Mendenhall by which your orator was induced to become in part a purchaser of said intended patent right was wholly false & fraudulent & known by him to be false & he charges that which he was fraudulently induced to believe that the defendant McIntyre was a partner of his in said purchase, it was distinctly & fraudulently understood by said Mendenhall that said McIntyre was not to be charged with any part of said purchase, but was put forward to deceive and delude your orator & to induce him to invest his money. Your orator further avers that said intended patent right has been thoroughly tested, that the said McIntyre had looms made in exact accordance with the patent & upon its plan by skillful workmen but that the looms so manufactured were & ?? to be entirely worthless. He therefore prays that this may be taken & received as an amendment & supplement to his original bill aforesaid. That the same defendants may be made to it & that your orator may have the relief originally prayed for & such other & further which as may be suited to his case.
Rockingham county to wit - this day N C Smith personally appeared before me the subscriber a notary public for the county aforesaid & made oath that the statement contained in his above bill as true to the best of his knowledge & belief. Given under my hand this 8th day of March 1861.
James Kenny NP
The Separate Answer of Abraham Smith to a bill Exhibited in the Circuit Court of Rockingham County Virginia against him and others by N Calvin Smith
Responded saving and reserving to himself the right to except & for answer to so much of the said bill as he feels himself called upon to answer, says, that he admits the allegations of the original and amended supplemental bills except that he does not by admitting that the bonds were transferred to his co defendant Allen C Bryan, mean to admit more than that they were put into the said Bryans hands for collection, the said Bryan being a practicing lawyer, at the time. Mr Bryan may have made some advances to Mendanhall upon the pledge with him of these bonds. In the year 1855 your Respondent removed to Harrison County now West Virginia and sometime thereafter he received a letter from the said defendant Bryan enquiring whether or not the said bonds were genuine, executed for proper consideration, unpaid and informing Respondent that the defendant Mendenhall was proposing to sell the bonds to him Bryan. Respondent on the same day upon which he received Mr Bryan’s letter wrote to Mr Bryan that the whole transaction, out of which these bonds grew, was a swindle. This letter respondent mailed upon the day on which it was written. Subsequently respondent saw Mr. Bryan and learned from him that he Bryan had received Respondent’s letter, in one time, but in consequence of the urgency of Mendenhall he had purchased the bonds or made some advances to Mendenhall upon them, he does not recollect which, before Respondent’s letter reached him Bryan. Bryan said he was then (ie at the time of the conversation) satisfied that the transaction was a fraud, upon your Respondent, but that it did not matter as he Bryan had the power or the means in his hands of reimbursing himself for all that he had paid Mendenhall. The means by which Bryan proposed to reimburse himself were these.
The complainant N Calvin Smith had purchased of the said defendant Mendenhall the right, as was called of the said patent, for the State of Kentucky and had paid him in a house and lot in the town of Mt Crawford Va. Mendenhall sold the house & lot on conditions paid at lease, placed the bonds executed by him upon this sale in the hands of Mr Bryan for collection and they were ?? by Mr Bryan to his own indemnity in the above transaction or the bonds on the proceeds thereof ensuing from the sale by Mendenhall of the Mt Crawford house & lot some how else came into the hands of Mr Bryan and your respondent supposes they were appropriated by Mr Bryan to his indemnity. At any rate Mr Bryan told Respondent that he had a sufficiency his hands arising from the sale of the Mt Crawford property to save himself.
Respondent answering says that he thinks that one object of Mendenhall in procuring the services of McIntire, as a confederate of his, and using him ostensibly as a co purchaser of the right, with the complainant, was to induce Respondent to execute, as surety of Complainant, the bonds upon which said judgment was founded as Complainant was young, inexperienced and had not the full confidence as to ?? prudence &c of Respondent.
Respondent further says that the said Mendenhall was a travelling vendor of the pretended patent, residing now in the State of Indiana, as your Respondent believes, and that the whole transaction was a cheat from which Complainant realized nothing and Respondent less.
Respondent denies that the process upon which said judgment was founded was ever executed upon him; he resided in Virginia, at the time, though in a distant part of the State; an attachment was erroneously take out against Respondent’s property in Rockingham County, where he had before that resided, but it was afterward dismissed. Respondent does not know how the judgment was obtained.
Having answered
Ro Johnston Atto.
Sworn to before me May 8th 1871
Pendleton Bryan N.P.
The separate answer of Allan C. Bryan to a bill in Equity exhibited by N. Calvin Smith against himself Stephen C. Mendenhall J. W. McIntyre & Abraham Smith in the Circuit Court of Rockingham County.
This respondent saving and reserving to himself the benefit of all just exceptions to the bill and amended or supplemental bill of the complainant for answer hereto answereth & saith:
The respondent does not admit the allegation in the amended bill that he was under any obligation to answer the original bill before the amended bill was filed, or that the original bill was perfected by the execution of a bond and release of error at law before the filing of the amended bill but understands the filing the amended bill, and the execution of a legal bond & release of error were contemporaneous acts. It is true that among the papers there is a bond, executed by the complainant, and Abraham Smith, one of the defendants in this suite, & in the judgement at law - as security- which appears to have been executed by the security in Harrison County and not in the clerk’s office and endorsed by the Clerk filed May 30th 1859 upwards of two years after the injunction was awarded. Another bond has been filed which is dated February 20 1861 and a release of errors, which have the same date four years from the rendition of the judgement.
The respondent admits that the obligations or bonds which were the foundation of the judgement at law, were executed to the defendant Mendenhall, by the complainant, and that the consideration was a patent invention of a weaving loom, for certain territorial boundaries.
The respondent does not know under what circumstances or representations the sale was made. He takes it for granted that the vendor of the patent, like most of men who have commodities for sale, whether patent rights or any other articles, praised his ware and represented the loom as a good income risk. Mendenhall the patentee made some stay in Harrisonburg, both before and after his contract with the complainant, and during his stay, the respondent heard of no fraud having been alledged, knew of no fraud, and does not admit any. The respondent does not know anything of a fraudulent combination between the defendants Mendenhall & McIntyre and does not admit any such, and the complainants own declaration in his amended bill, other negatives the idea of combination & collusion between McIntyre & Mendenhall. The complainant says “McIntyre had looms made in exact accordance with the patent and upon its plan by skilful workmen but that the looms so manufactured were, and proved to be utterly worthless.” If this fact proves anything it proves the sincerity and good faith of McIntyre. But this respondent knows nothing of the alledged partnership between the complainant & McIntyre and knows nothing on the subject of a scheme between Mendenhall & McIntyre to deceive & defraud the complainant and does not admit such a scheme.
The respondent denies all fraud, and having answered prays to be hence dismissed with ? and prays for a dissolution of the injunction rewarded to the complainant.
Allan C. Bryan
Bryan & Woodson for the dft.
Rockingham County to wit:
This day Allan C. Bryan personally appeared before me the subscriber Clerk of the Circuit Court of Rockingham and made oath that the foregoing answer is true according to the best of his knowledge & belief. Given under my hand March 23d 1861.
April 1873 Term
N C Smith & S C Mendenhall &c
In Chancery
This cause came on this day to be heard on the original & amended bills taken for confessed as against S C Mendenhall John R Koogle Sheriff of Rockingham County Va & J W McIntyre. The subpoena having been regularly executed and decree taken & confirmed as to John R Koogle and order of publication having been duly taken and executed against J W McIntyre and S C Mendenhall in due time, and as to Abraham Smith and Joseph A Hammon adm of A C Bryan decd on the separate answers of Abraham Smith & AC Bryan & general replications thereto & the depositions in the cause the adverse party waiving exceptions as to irregularity as to time & place of notice taking JW McIntyre’s deposition, and the exhibits filed the case having been regularly set for hearing to all the parties, and was agrued by counsel.
On consideration whereof the Court doth adjudge order & decree that the injunction awarded the plaintiff on the 4[SUP:]th[:SUP] March 1857 and perfected on Feby 20th 1861 to enjoin Stephen C Mendenhall AC Bryan and John R Koogler Sheriff of Rockingham County Va from enforcing the collection of a judgment rendered at the February Term for the County Court of Rockingham County 1857 in the name and style of S C Mendenhall who sues for the use of Allen C Bryan against N C alias N Calvin Smith and Abr alias Abraham Smith for the sum of $1300.00 with interest on $434.00 part thereof from the 5 day of Sept 1855 on $434.00 another part thereof from the 5[SUP:]th[:SUP] day of December 1855 and on $432 the residue thereof from the 5th day of March 1856 till paid, $7.33 cost on which judgment execution was sent out on the day of ___ 1857, be made perpetual, and that the defendants Mendenhall McIntyre & Joseph A Hammon Administrator of Allen C Bryan decd. Adm of Allen C Bryn decd from the assets of said estate of said Bryan decd do pay to N C Smith his costs by him about his suit in this behalf expended and the said N C Smith & J W McIntyre are perpetually enjoined from using or selling the patent right for the loom in the bill & proceedings mentioned and their contract with Mendenhall is hereby rescinded and all matters involved in this suit having been settled the same is ordered to be stricken from the Court’s docket.
N C Smith Vs S C Mendenhall &
In Chancery
This day came the parties by their attorneys and thereupon the defendants Mendenhall & Bryans admr by their council moved the Court to hear this case upon the papers therein filed. To wit: upon the Bill & exhibits filed at July Rules 1857 and upon the injunction awarded on the 4 March 1857 - and upon the process returned and executed upon the defendants AC Bryan & Abraham Smith and upon the answer of Defts Abraham Smith & and A.C. Bryan. The complaint upon the order of publication and executed as to the other defendants. And upon the amended bill filed at April Rules 1861 and it appearing to the Court that the case has been received so Jos. A. Hammon late Sheriff of Rockingham and as such admr &c ?? of AC Bryan decd and that it has set for hearing as to A.C. Bryan & Abraham Smith at December Rules 1860 upon the depositions of witnesses taken for Peff & Deft. Abraham Smith & filed on the 25 February 1872 viz the deposition of J. C. ????? and upon the notice of a motion to dissolve the injunction executed on Abraham Smith March 25 1871 filed in the case - but the said Abraham Smith moved the court to continue the case on the ground that he was not ready for trial and denied time to take other testimony and the court thereupon refused to try the case and continued the same until the next term.
That he is surety only for the debt that he has not known for a long time and until since the commencement of the present term of this court the residence of his principal or the whereabouts of McIntire when he seems a material witness; that he has been in such infirm health as to be unable to attend to the preparation of this cause; that he has been confined at his home for six months in the county of Harrison Va by sickness; that he is a very old man; that he has recently received the letter from his principal marked Z dated Cumberland 17 April 73; that the transaction out of which this claim grew was not with him but his principal - of the truth of all which the said Abraham Smith made oath in open court.
March 1873
N C Smith Vs S C Mendanhall, &c.
In Chancery
On motion of the defendant Abraham Smith, he is permitted to file his answer, to which the Plaintiff replies similarly. And it appearing to the Court that the defendant Allan C Bryan has departed this life, by consent of parties this cause is reread against Jos A Hammon late Sheriff of Rockingham, and as such administrator of said Allan C Bryan and continued until the next term.
State of Virginia Madison County to wit:
This 8th day of September 1873 Abraham Smith personally appeared before me the undersigned, and made oath that he cannot safely go into trial of the case of N C Smith vs. Stephen C Mendenhall &c at the September 1873 term of the Circuit Court for Rockingham Co Va without the testimony of J W McIntyre whom he has within the last four or five months been informed, lived in the city of Philadelphia Penn and that he the said Smith is old & feeble & has gotten his counsel to write twice to said McIntyre and also he is informed that his son NC Smith has written once to McIntyre in reference to making his deposition but that neither parties could hear from him & that his counsel then gave notice to J C Woodrow the attorney for the other side per notice marked A” filed with the papers that he would on the 5th of Sept 1873 proceed in Phila to take the deposition of said McIntyre, and that on the 29th day of August 1873 he mailed a registered letter to his counsel see receipt of Post-master at Rochelle Madison County Va filed and marked B” enclosing money to send a suitable person to Philadelphia & to pay the expenses of taking the deposition, and that he is informed it did not reach Harrisonburg until the morning of the 4th day of Sept 1873 when it was too late to reach Phila and that the Post-master in Harrisonburg had mislaid it & only found it when the receipt herein file B” was produced which he mailed in a letter that he wrote on the second of Sept 73 post marked Sept 3d at Rochelle Madison County Va which said registered letter ought to have been delivered on the 31st day of August 183.
Given under my hand this 8th day of September 1873
Rockingham County To wit
This day Abraham Smith personally appeared before me Clerk of the Circuit Court of Rockingham County and made oath that to the best of his knowledge and belief that S C Mendenhall and J W McIntyre are non residents of the State of Virginia. Given under my hand this 15th day of February 1872.
N Calvin Smith Vs Stephen C Mendenhall J W McIntire J A Hammen late SRC and as such Admr ?? of Allen C Bryan deceased and Abraham Smith, defts.
The object of this suit is to restrain Stephen C Mendenhall from collecting a judgment obtained by him for the use of Allen C Bryan in the County Court of Rockingham Va at its February term in the year 1857 against N C Smtih, $1300. with interest on 434$ part thereof from the 5th Sept 1855 and on 434$ another part thereof from 5th Dec 1855 and 432$ the residual thereof from 5th March 1856 and 7.33c costs.
State of Virginia County of Rockingham to wit:
This 23d day of September 1873 Wm Shands personally appeared before me the undersigned and made oath that at the request of Abraham Smith he wrote to McIntyre in reference to taking his deposition and after waiting a reasonable time for him to answer he gave notice to J C Woodrow counsel for the estate of Allen C Bryan &c that they would proceed on the 5th day of September 1873 to take the deposition of J W McIntyre in the city of Philadelphia Penn see notice filed, that he wrote to Abram Smith requesting him to send the money to pay for the expenses of same and to go to Phila to take said deposition and that in reply thereto he did not receive any answer until the morning of the 4th of Sept when he got a letter mailed on the 3[SUP:]rd[:SUP] of Sept enclosing receipt for a letter registered on the 29th of August and that after the Post-Master found the letter in a drawer stating it had been mislaid, that he went immediately to J C Woodrow and stated the above facts and requested him to extend the time as the train had then been gone some time and it was too late to go to Phila that day, this after a consultation with W Newman he declined to do, and that from what he is informed said McIntyre will testify to he regards him as a very material witness and that Abraham Smith is a very old & inform and has not been able to attend to his business properly and that to his knowledge he has been here twice from Madison County trying to get up his evidence in this case in the last eighteen months.
Given under my hand the day and year above.
N C Smith et al vs. S C Mendenhall et al
In the Circuit Court of Chancery of Rockingham Co. Virginia
Depositions on behalf of plaintiffs taken pursuant to ? Commission and notice.
Present. J. W. McIntrye, the witness; and William Shands Esq. of counsel for N.C. Smith and Abraham Smith.
State of Pennsylvania, City of Philadelphia
Commissioner’s Office. 3 Jany 1874.
I, F Herbert ?, a Commissioner of the State of Virginia for the State of Pennsylvania do certify that on the third day of January A.D. 1874 at my office between the hours of 6 a.m. and 6 p.m. J. W. McIntyre witness on behalf of N.C. Smith and Abraham Smith in a suite depending in the Circuit Court of Rockingham Co. Virginia, came before me, and the said
J.W. McIntyre, the witness above named, being first duly sworn according to law, doth depose and say:
I am of full age; I reside in the City of Philadelphia, at No.202 South 40th St.
Q. State what you know about the purchase of a patent right for a loom by yourself and N.C. Smith, and also as to Abraham Smith endorsing the bonds of N.C. Smith to S.C. Mendenhall?
Ans. S.C. Mendenhall had this patent right to sell; and he found that if I would take an interest in the purchase N.C. Smith could be induced to buy - one half interest was to cost me nothing. For probably about a week Mendenhall was urging me to take an interest so that N.C. Smith could be induce to purchase; he, Smith, knew nothing of the agreement that I had with Mendenhall that I should pay nothing. N.C. Smith and I took the patent right for that part of Virginia West of the Blue Ridge, he giving his bond to Mendenhall for his interest - one half - and I paying nothing. Abraham Smith, N.C. Smith;s father, endorsed his son’s bonds in consideration that I would take an interest.
The patent right was represented by Mendenhall to be of a useful character; practically, it would not answer the purpose for which it was intended; I tested the thing very thoroughly. I had one or two - I think two - of the machines manufactured at the Penitentiary at Richmond Va. They were thrown aside and not used, as they would not answer the purposes for which they were recommended. I had several manufactured at Harrisonburg Va., which were thrown back on my hands as worthless.
My recollection is that the purchase was made from Mendenhall in 1854 or 1855 at Harrisonburg, Rockingham Co. Virginia.
I think that Abraham Smith went on his son’s induced by my taking an interest. Abraham Smith knew nothing of the agreement between Mendenhall and myself in regard to the sale.
J. W. McIntyre
Which examination being completed, I now ? and certify the same unto the said Circuit Court of Chancery of the County of Rockingham in the State of Virginia.
Deposition taken at the office of F. A. Dangerfield a Commissioner of the Circuit Court of Rockingham, on Wednesday, the 7th day of February 1872, pursuant to notice & by consent of parties, to be read in evidence on behalf of N.C. Smith Complainant, and Abraham Smith, one of the Defendants in a suit in chancery in the court aforesaid depending and undetermined in the Style N.C. Smith Complainant vs Stephen C Mendenhall & others, Defendants.
Present - A Smith in proxy by attorney, J.C. Smith & A.C. Bryan’s admr, by attorney
Quest by Counsel for Complainant & Defendant Abraham Smith. What do you know, if anything, about a sale by one Stephen C Mendenhall in the early part of the year 1855 of the right to make and vend in the Valley of Virginia and Western Va what was slyted Mendenhall’s patent Loom, to N.C. Smith and J.W. McIntyre?
Answer. I do not recollect the precise year, I was called in to see if I could manufacture the loom I think by N.C. Smith. After examining it carefully I concluded that I could make all the parts that could be manufactured in this place. My opinion was frequently asked as to the quality of the machine, and if I thought it would be a profitable investment. I discouraged N.C. Smith in the purchase, I did not think it would. McIntyre seemed to differ with me & concluded to purchase it. I then went to Abraham Smith, as I understood he was to go on the bond, and endeavored to persuade him not to go on the bond. He replied that he would not go on the bond unless Mr McIntyre went on, he thought that would make it safe. I had frequent conversations with Mendenhall, McIntyre & N.C. Smith & always understood that McIntyre was to go on the bond. I declined to make the machines having no confidence in them.
(So much of the answer, foregoing, as gives the statements of Mendenhall, McIntyre, NC & Abraham Smith - excepted to, A.C. Bryan, one of the Defendants being dead.)
Quest by Same. What do you know, if anything, about the particular terms of the contract?
Answer. I do not recollect the particular terms of the contract. I understood from N. Calvin Smith that he traded Mendenhall a house & lot in Mt Crawford in part pay for the patent.
Quest by Same. What do you know, if anything, about the execution of the bonds by N. Calvin Smith & Abraham Smith to Mendenhall in pary pay for the patent?
Answer. I was satisfied at the time that the bonds were executed just on the eve of Mr. Abraham Smith’s starting for the West. I did not see the bonds executed but was satisfied they were from statements made by the parties.
Quest by same. What statements if any in regard to the execution of these bonds did you hear Mendenhall make?
Ans. Nothing farther than that he seemed to be satisfied and that the contract was completed.
Quest by same. Was there any warranty or representation in relation to the machine made by Mendenhall to N.C. Smith & McIntyre? If so what?
Answer. He seemed to give every satisfactory warranty - as assurance as to its utility - usually given by a Patentee. He spoke of its having been used in a good many manufacturing establishments in the North & West and also in Penitentiaries & of its have given general satisfaction.
Quest by same. What was your estimate of the value of the machine?
Answer. I believed that there would be very little economy, if any, in the use of it. The machine was considerably complicated & liable to get out of repair. (It appearing from the Bill that there was a written contract of sale, ? evidence of its terms is objected to)
Quest by same. Who were Stephen C Mendenhall & J. W. McIntyre & what has become of them?
Answer. I think Mendenhall hailed from Ohio, I do not know where McIntyre came from, but from North or West, he married in this place, and is now, I understand, residing in Philadelphia. Mendenhall was a stranger here, he came through with his loom selling rights & after he disposed of his right here he left. Since then I have not seen him.
Quest by same. Was there to your knowledge any connection, business or otherwise, between McIntyre & Mendenhall?
Answer. I thought at the time there was some Yankee jugglery or trickery & therefore I cautioned Mr Smith from going in as surety. I judged from the maneuvering of McIntyre & Mendenhall. I knew nothing positive.
(The foregoing answer objected to as not founded upon any knowledge, but upon conjecture) (Objection by A.C. Bryan’s representative)
Quest by same. Did McIntyre & Mendenhall come here together?
Ans. McIntyre was residing here I think when Mendenhall came here.
Quest by same. Did McIntyre attempt to do anything with the loom?
Ans. McIntyre & N.C. Smith were out from here several trips with the machine, once I think to the Richmond Penitentiary to try to introduce it.
Quest by same. How were the bonds for the price of the purchase of the machine executed to Mendenhall by McIntyre & N.C. Smith? With Abraham Smith as surety or otherwise?
Ans. My understanding was that McIntyre was to go on the bonds but thought at the time it was a partnership between NC Smith & McIntyre. I never saw the bonds. I understood at the time that Abraham Smith was to be surety. I tried to keep him off the bonds but he said he thought that if McIntyre would go on to the bonds & into it, that they might do something with the machine.
Cross examined by Counsel for A.C. Bryan’s representative.
Quest. How long was Mendenhall here?
Answer. I do not recollect the time exactly. Several weeks, perhaps a month. It may have been even more.
Quest by same. Have you any personal knowledge of any collusion between Mendenhall & McIntyre for the purpose of selling said machine, of of any unfairness on the part of Mendenhall.
Answer. Nothing further than a general distrust of Yankees, and their frequent conflabs aside & their great intimacy led one to the conclusion & my solicitude for Mr. Smith to keep him off the bonds.
And further the deponent sayeth not.
Wm. McK. Wartmann another witness introduced on behalf of same, having been first duly sworn deposes and says.
Quest by Counsel for NC Smith Complainant & Abraham Smith Defendant. State what you know about the sale of a certain patent right for a loom by Stephen C Mendenhall to NC Smith & JW McIntyre & the execution of certain bonds for the price thereof?
At this point the further taking of depositions is adjourned till tomorrow morning at 10 o’clock.
Thursday Feb’y 8th 1872. Same place, the taking of depositions is resumed, present - same parties as on yesterday.
Wm. McK. Wartmann - witness - in answer to question propounded on yesterday.
Ans. I know nothing of the execution of the bonds, was not present when they were executed. I know nothing of the sale of the patent right by Mendenhall to Smith & McIntyre.
Quest by same. What was the character of the machine, the right to which it is alleged Mendenhall sold to Smith & McIntyre?
Ans. It was a loom, or an implement on looms, which professed to weave more cloth & with more simplicity of operation - in shorter time & with less labor than ordinary looms & to do its work better. My present recollection is that when trial was made of it it failed in all these particulars, it was considered a thorough & complete humbug & swindle.
Cross examined by Counsel for the personal representative of Allan C. Bryan decd.
Quest. Who was the Patentee of the machine?
Ans. I do not know.
Do you know who made the machine that was experimented with? Was it made here or brought here by Mendenhall?
Answer. I do not recollect anything about it.
Do you recollect who used it?
Ans. My recollection is that Smith & McIntyre attempted to work it.
Quest. Are you a machinist?
Ans. I am not. I have no knowledge of machinery.
Quest. Could you say from your own knowledge of mechanics, that that loom was defective in principle?
Ans. I could not.
Quest. You speak of its being a humbug. Do you speak this of your own judgment of the principle of the machine, or because of the failure in the experiment to which you allude, or from the opinion of others?
Answer. Not from my own judgment of the principle for I had none on that subject. I made no examination of its principle. I speak from observation of the experiment & from the opinions of those who observed the operations of the machine & in whose judgment I had more confidence than in my own.
Quest. Can you say whether the failure in the experiment was owing to a defect in the principle of the machine or in its faulty construction?
Answer. I can not.
And further this deponent sayeth not.
Commissioners Office Harrisonburg
Tuesday, February 13th 1872
The further taking of depositions resumed pursuant to adjournment - present, N.C. Smith & Abram Smith by Counsel, Abram Smith in person & Allan C. Bryan personal representative by Counsel. J. N. Bruffy a witness of lawful age being duly sworn deposes & sayeth:
Question by Counsel for N.C. & Abrahm Smith. What do you know, if anything, about the purchase by Mrs. Nancy Devier & Lucy A. Cattell of a house & lot in Mt Crawford from S. C. Mendenhall?
Answer. When I first knew the property it belonged to N. Calvin Smith, of whom I rented it from the Spring of 1851 until the fall of 1852. Soon after which time Mrs.Devier & Mrs. Cattell took possession of it, they occupied the house for two or three years I think, during which time Smith frequently aske them to purchase it, they declined purchasing & then Smith traded it to Mendenhall for some patent loom. That put them out of a home & then they purchased the property from Mendenhall. This is the amount of my knowledge of it.
Do you know how, when & to whom they paid for the property.
Answer. It has been so long that I can not say how it was paid for. I am satisfied however that Mendenhall got the pay for the property & not Smith.
Had these ladies pecuniary means with which to pay?
Answer. They had ample means to pay for it.
By same. You have said above that you were satisfied that the price of the house & lot was paid to Mendenhall - not Smith. Was it paid to Mendenhall in person or to some one for him?
Ans. I arrive at the conclusion that Mendenhall or his agent got it from frequent conversations had with Smith who frequently spoke of the property having passed away from him without any pecuniary benefit to him. (Answer objected to by Counsel for Bryans representative because theinformation is hearsay - derived from conversations with N. C. Smith. Answer to 2[SUP:]nd[:SUP] question objected to on same ground.)
And further the deponent sayeth not.
J N Bruffy
Giles Devier another witness introduced by NC Smith & Abram Smith, having been first duly sworn, deposes & says
Quest by Counsel for Smiths - To whom, if to any one, did Mrs. Nancy Devier & Lucy A. Cattell pay the purchase price of a house & lot in Mt Crawford, which was purchased by them from Mendenhall?
Answer. My recollection is not sufficiently clear to say, though I am satisfied that Mendenhall, or a man of some such name, who had a loom patent got the money for it. I have some recollection of paying a bond for them to Allan C. Bryan which I think was for the purchase money of that property,but I am not sure that the bond I paid Mr. Bryan was for this property. It is possible that it was a bond for the purchase of another property known as the Gaily property in the town of Mt Crawford.
I think Mr. Bryan had two bonds one of about $300 & the other of about $140 but I am not certain which property they were on. My impression is that I took up both these bonds which were in Mr. Bryans hands from Mr Bryan on the purchase money of some land which I sold to Samuel A. Long, Mr Bryan being at the time indebted to Long or holding moneys belonging to said Long.
Nancy Devier was my mother and Lucy Cattell my sister. I transacted business for them.
Cross examined by Counsel for Bryans personal representative.
Quest. Did not Allan C. Bryan as endorser for your mother pay a not given for the purchase of the Gaily property, which was protested in the Bank of Rockingham, & may it not be that note which you settled with Mr. Bryan?
Answer. I do not know whether Mr. Bryan was endorser on the note or not. I know there was a negotiable note which Mr. Bryan paid, but I do not know which house it was on. This was one of the notes I took up from him.
And further deponent sayeth not.
Giles Devier
Joseph C. Braithwaite recalled & sworn - deposes & says
Ques by Councel for NC & Abm Smith. Do you know upon what conditions, if any, Abram Smith signed these bonds to Mendenhall, if so state. I allude to the bonds concerning which you were examined in this cause on the 7th of February 1872.
(Question objected to by Counsel for Bryan’s personal representative because witness was examined on same matter in his former examination.)
Answer. The condition was as well as I can recollect that at the time as I learned from the parties concerned, that McIntyre was to go on the bond.
Quest. In what capacity did Abram Smith sign the bonds - as surety or principal?
Answer. As surety.
Cross Examined
Quest by Counsel for AC Bryans personal representative. Were you present when the bonds were executed?
Answer. I do not think I was. I do not recollect of ever seeing the bond.
Quest by same. From whom did you understand that Abram Smith was surety?
Answer. From Mr. Smith himself & from his son N.C. Smith & perhaps from the other two parties. I do not recollect.
Have you any recollection of hearing it from Mendenhall or McIntyre?
Ans. No distinct recollection. I was satisfied the bonds were executed according to agreement.
By same. From whom did you understand that McIntyre was to sign the bonds?
Answer. I can not well say now positively, but I think from a conversation with McIntyre, Smith, Mendenhall - all the parties. I had frequent conversations with all of them. I had frequent conversations with them about the agreement, together and apart.
Quest by same. Have you any recollection at all that Mendenhall told you that McIntyre was to sign the bonds?
Answer. I think he did.
Quest by same. Was this before or after the bonds were signed?
Answer. I think it was before from the fact that Mr. Abm Smith made it a condition that McIntyre was to sign them and I was anxious to keep Mr. Abram Smith off the bonds.
Quest by same. How do you know that Mr. A. Smith made it a condition?
Answer. I heard him say so & that if Mr. McIntyre signed the bonds he thought it would be safe.
And further deponent sayeth not.
Commissioners Office Harrisonburg Sept 25 73
Met Pursuant to adjournment
Present Complainant & Defendant by Counsel
Jacob P. Effinger witness of lawful age introduced on behalf of N.C. Smith Complainant & Abraham Smith Defendant having been by me first duly sworn deposes & says.
Quest by Counsel for N.C. Smith & Abraham Smith. State what you may know about a transaction between N.C. Smith & Abraham Smith with Stephen C. Mendenhall in the year 1855 & about a conspiracy between McIntyre and Mendenhall to cheat said Smith? Quest excepted to by Counsel the Estate of Allan C. Bryan Decd.
Ans. About the year 1855 or 1856 Mr McIntyre got in the third story of my Lumber House, and afterwards informed me that the day before he had spent in the Cupola of the Old Methodist Church on the Hill, that they had has some trade in which Mendenhall, Smith & McIntyre were concerned. My impression is that Mendenhall had sold a loom, that Smith had made the purchase or that he & Smith had made the purchase together, & that he was there for the purpose of keeping out of Smiths way, & that he, McIntyre, was trying or had a trade on hand with Mendenhall, & did not want Smith present with them. My recollection is McIntyre wanted to get up some paper that Mendenhall held against him and get Smith’s bonds from Mendenhall.
Quest & answer objected to by Counsel for the Estate of Allan C. Bryan, decd, as the statements of McIntyre are not legal evidence against AC Bryan’s representation.
Cross Examination
Quest by Counsel for A.C. Bryan’s Estate. How did McIntyre say he expected go get Smith’s bonds?
Ans. He had some trading with Mendenhall & in that way I believe it was his calculation. I do not now remember what the trading was.
Quest by same. Was McIntyre well acquainted about your Lumber Room?
Ans. Yes Sir, he was there frequently.
Quest by same. Did he ask your consent to go into the third story.
Ans. I do not now remember whether he asked me, or asked my brother who was there.
Quest by same. Have you read the original bill of N.C. Smith against S.C. Mendenhall &c since you came to the Commissioners’ office?
Ans. I glanced over & read a part of it.
Quest by same. Does that bill refresh your memory with regard to the occurrence, or conversation between you & McIntyre?
Ans. No, excepting as to time it corresponds with my impression before I came into the House. I was under the impression that it was in the fall of the year & by that bill it seems to have been in the Spring of 1855. I was under the impression that it was in the Fall of 1855 or 1856. By the statement in the bill it was in the Spring of 1855.
And further this deponent sayeth not.
To N.C. alias N. Calvin Smith and Abr. Alias Abraham Smith
You will take notice that I shall move the Circuit Court of Rockingham County on the 3d day of the April Term next that being the 18th day of April 1871 to dissolve an injunction and dismiss the proceedings thereon pending in the said Circuit Court in which N.C. Smith is plaintiff & Stephen C Mendenhall A.C. Bryan J.W. McIntire & Abraham Smith are defendants restraining the collection of a judgment obtained in the County Court of Rockingham County at the Feby Term 1857 of said Court against N. C. alias N. Calvin Smith and Abr. Alias Abraham Smith in favor of Stephen C. Mendenhall for the use of Allan C. Bryan for $1300 a portion of which said judgment has been transferred by said Allan C Bryan to me.
St Clair Kyle by Counsel
