June 23, 1933
MAGOR CAR CORPORATION
On Petition for Rehearing.
The appellant by his petition for rehearing points to errors in three expressions in the opinion; one because it is without foundation in the record, and two because contrary to the evidence. The last two arose out of issues of fact and reflected our deliberate judgment which, on re-examination, we find no occasion to change. The first expression, however, concerns the practice of the plaintiff in building cars ostensibly under the patent after the Oliver design came out. Being impressed by the plaintiff's model of a railroad car, by the rules of the Master Car Builders' Association, by the testimony as to the resemblance between the contesting structures, and perhaps by an assertion of the defendant, repeatedly made, we said that the appellant, after seeing Oliver, never built cars (meaning railroad cars) with the fulcrum support and short-link connections of the patent. That may be wrong; yet again it may be right, for the appellant does not deny the truth of the statement, but says it is not supported by the record. Assuming he is right, the assailed statement concerns only an alleged practice of the plaintiff and was intended merely to make the issue of infringement stand out; it does not touch the decision on the issues of validity, scope of the claims, or infringement. We mention the matter in this brief opinion in order that the statement, right or wrong, shall have no influence upon litigation between the parties elsewhere.
The petition for rehearing is denied.
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