"[Transcript from Messrs. MARTEN and MEREDITH'S Shorthand Notes.] Counsel for the Plaintiff Mr. FIELD, Q.C., and Mr. LAWRANCE (Instructed by Messrs. DoD and LONGSTAFFE, London).

Counsel for the Defendant-Mr. D. SEYMOUR, Q.C., and Mr. GILBONS (Instructed by Messrs. NORRIS and Co., Halifax).

Mr. Lawrance opened the pleadings.

Mr. Field stated the plaintiff's case as follows:-May it please your Lordship, Gentlemen of the Jury, the plaintiff in this case, Mr. Kirkman, carries on his business in London as a pianoforte maker, and I believe he and his predecessors have carried on that business for something like 140 years. He has a large business, and, amongst other things in modern times, he has invented a very considerable improvement (or what he and a great many persons in the musical profession think is an improvement) by the introduction of steel in the manufacture of pianos.

Steel, you know, is becoming a most valuable thing in all directions, taking the place of iron to a great extent, and a certain part of the piano, which formerly was made of cast or wrought iron, is now made of steel.

There is a frame inside the piano and a tension plate, and the strings are stretched across from one end to the other. The resisting portion of that was formerly made of cat or wrought iron, but Mr. Kirkman has invented a mode of using steel for the purpose of the frame as well as the tension bars, and that, in his judgment, and in the judgment of a great portion of the musical world, produces a very considerable amount of brilliancy of tone and improvement generally in the piano.

For that improvement he took out a patent some time in the year 1870, and he has made what we may call his trade mark this label which I hold in my hand" Patent Steel Grand." That is the denomination that he gives to his pianos, which he manufactures under that patent. In point of fact, in the trade the new "Steel Grand" has become associated with Kirkman, and it is his invention-one which everybody knows belongs to him; so that one may almost say that these are convertible terms, and that Patent Steel Grand means a piano manufactured by Mr. Kirkman.

Gentlemen, that being so, he has advertised these pianos very largely, and I had better read to you the class of advertisement he issues for the purpose of explaining to the public at large what is the nature of his invention, "By Her Majesty's Letters Patent. - Kirkman & Sons' new Patent Steel Grand Pianos."

I draw attention to the words "Steel Grand," because you will find they bear very considerably on the conduct of the defendant, and what he has done on the occasion complained of. He says, "the improvement in the construction of these pianos consists in the employment of steel in the tension bars and wrest plank of the instrument, instead of cast or wrought iron or wood."

Then he goes on to state the prices of the "Patent Steel Grands" (you observe the words he uses); first, "Concert Grands," the largest size known; second, "Drawing Room Grands;" third, "Boudoir Grands;" fourth, "Semi-Grands."

Therefore, you have here the application of steel for the purpose of manufacturing pianos known as "Steel Grande," divided into four classes-Concert Grands, Drawing Room Grands, Boudoir Grands, and Semi-Grands. Gentlemen, having now told you who the plaintiff is, and what his position is, let me say a word about the de. fendant.

The defendant, Mr. Pohlmann, is a musical instrument seller (I am not sure that he does not manufacture also) in Halifax; and this action is brought against him for a very unfounded, and, to Mr. Kirkman's trade and business, a very mischievous statement made by Mr. Pohl. mann, and circulated as widely as he could possibly circulate it.

The circumstances under which the thing was done were these : - A Mr. Hemmingway, of Halifax, had in the month of January last, on the 9th, 10th, 11th, and 13th, an exhibition of pianos in the Drill Hall, at Halifax.

He invited the public to come in and see the pianos-he being a person interested in the sale of those pianos-and he gave a concert on the 13th at the Drill Shed for the purpose of assisting in that, and amusing the public at Halifax.

Amongst the pianos which he so had on show there were several of Kirkman's, of which these were two : No. 1 was a magnificent ebony and ormolu inlaid concert grand by Kirkman, not mentioning steel at all, you will observe, and therefore being one of the old construction of wood and iron.

But then he had also "one Walnutwood Boudoir Steel Grand." Now you wil recollect what I showed you just now. The defendant, Mr. Pohlmann, has a son, and on the morning of the 9th January, when the exhibition was first opened, Mr. Pohlmann's son came there, as he had a perfect right to do, to look over the pianofortes, and then the next day, on the 10th, as the public went into the show-room to see the pianofortes, Mr. Pohlmann, by means of boys and others, put into the hands of everybody going into the shed what he calls a "caution."

Now, gentlemen, Mr. Pohlmann has a right to speak of his own wares in any way he pleases; he may aver that his wares are better than Kirkman's.

But in - J wont say "puffing"- vending his own wares he has no right whatever untruly to charge another maker that he falsely manufactures a thing. Now, gentlemen, I will read you the caution which is the foundation of this action, and I think you will say that a more mischievous thing as regards Mr. Kirkman and his pianos can hardly be imagined, or one more likely to do him injury in his business :

"Caution. To the musical public. Ordinary foreign made pianos, with the usual wood back and iron plate in front, are now exhibited, and offered for sale in Halifax, as iron cottage and horizontal grands, with the names of second class London houses upon them, professing to be the makers; also "Steel Grand" pianofortes are advertised which have no more steel in their construction than any other common piano."

Now, the only person who advertises Steel Grands, and with whom Steel Grand Pianos were essentially connected, was Mr. Kirkman. Therefore here you have a most mischievous allegation, stating that Mr. Kirkman's pianos had no more steel in their construction than any other piano. Not satisfied with handing that to everybody who went into the Drill Shed on those four days in January, he distributed them at Todmorden, Cleckheaton, and other places in the neighbourhood, as though he were determined to do all the mischief he possibly could.

Well, gentlemen, of course, as soon as that came to Mr. Kirkman's knowledge he immediately consulted his solicitors, who wrote to the defendant a letter drawing his attention to the injury which Mr. Kirkman has sustained. That is dated the 23rd of January 1873, and the answer to it, I suppose, contains the defendant's case.

I am going to read them both to you in order to show how utterly unfounded the case proposed to be set up this day is. On the 23rd of January Messrs. Dod & Longstaff wrote to the defendants this letter: "Gentlemen, Messrs. Kirkman & Son, of Soho Square, have consulted is upon the subject of a printed document, headed Caution, which you have caused to be widely circulated in Halifax, and wherein you state, among other things, that "Steel Grand" pianofortes are advertised which have no more steel in their construction than any other common pianofortes.

Our clients are aware that this is intended to refer to their pianofortes, as indeed it must, seeing that they are the sole patentees of, and the only persons making and advertising, Steel Grand' pianofortes, and we have to give you notice that unless you at once signify your willingness to apologise for this libellous statement with regard to their pianofortes, and to acknowledge that it is not founded in fact, and to advertise this apology and acknowledgment as widely as you have advertised your caution, or otherwise as Messrs. Kirkman & Son may desire, and to pay our charges in the matter, an action will at once be commenced against you to recover such damages as a jury may under the circumstances award.

We must request to hear from you satisfactorily in the course of this week, and if Messrs. Kirkman & Son are to be left to their legal remedy, you had better refer us to your solicitors." Upon that we got this answer from Mr. Pohlmann :

"27th January 1873 - Mr. Seymour - Your Lordship will forgive me for interrupting. I call your Lordship's particular attention to this reply, because it simplifies the matter, for it really discloses very much my case.

Mr. Field This is the answer - "In reply to yours of the 23rd, our Caution' advertisement was entirely local, and, as it states, referred to pianofortes advertised and offered for sale in Halifax."

So, of course, was Mr. Kirkman's, and I say that refers to Mr. Kirkman's pianofortes, for there were no Steel Grand Pianofortes except Kirkman's advertised and offered for sale in Halifax.

"We have never seen or heard of any advertisement issued by Messrs. Kirkman in Halifax, or elsewhere, respecting Steel Grand Pianos, and they are in error in supposing it referred to them specially or personally."

Why, gentlemen, these advertisements of Mr. Kirkman's, which I have read to you, were publicly advertised continually in the newspapers over and over again; therefore, he is in error again there.

"The enclosed advertisment of Mr. Hemmingway's will prove that Steel Grands are advertised in Halifax by other makers."

Now, that enclosed advertisement, first of all, was not in existence at the time he wrote this caution. It did appear afterwards, and what the defendant has done has been to try to seek to justify his libel by means of that advertisement, which did not appear till several days afterwards, and which, even when it is produced, does not bear out his statement. Then he says,

"Mr. Pohlmann examined a piano at the Mechanics' Hall, which was represented to be one of Messrs. Kirkman's Steel Grand Pianos; it was not a Grand Piano at all, but was in fact a Trichord Cottage Piano, with wood back and iron plate in front, and the common simple English Sticker Action. The label on the piano described it as an Iron Upright Grand."

I will show you what that was; it had on it a label like this" Full Trichord Iron Upright Grand." "And we are in a position to prove that this instrument was sold and invoiced as a 'Steel Grand' by Kirkman, but we do not suppose that this was done with the knowledge or sanction of Messrs. Kirkman."

Gentlemen, it is utterly immaterial to Messrs. Kirkman whether the defendant is prepared to prove that or not. If he had said that a piano had been advertised in that way, he would have been perfectly right.

Mr. Kirkman complains that the charge is that he advertised Steel Grand Pianos having no more steel in them than any other common piano. Now, I shall call Mr. Hemmingway before you, who, if my friend likes to cross-examine him, will tell you all about any piano of Mr. Kirkman's make he ever sold, and you will find that this has nothing whatever to do with the case.

Then he goes on - "A piano was advertised by Mr. Hemmingway, on view at the Drill Shed, on the 11th and 12th of this month, as a Walnut Steel Upright Grand, by Kirkman.

Mr. Pohlmann has not seen this instrument, but was informed that on the label it was also described as an Iron Upright Grand." That is perfectly true; there is the label [exhibiting a label], but that has nothing to do with this matter.

"It is quite new information to us that Messrs. Kirkman have a patent for Steel Grand Pianos, but at present we are at a loss to understand what is meant by a Steel Grand."

Gentlemen, it is a very unfortunate and curious thing that he should not know what is meant by it, and yet that he should in this very "Caution" have put in the words " Steel Grand" in inverted commas; and yet he now pretends by this letter that he did not know the meaning of it, although he makes it in the label a definition and indication of a certain make of piano, by putting the words in inverted commas, "Steel Grand," the context showing that he knows it is an improvement on the ordinary piano.

Then he goes on to say, "Does it mean a piano made of steel" (do look at the absurdity of this), "or a piano made with the usual wood back, and a steel plate instead of an iron plate? We shall be glad if Messrs. Kirkman will inform us what they mean by a Steel Grand Piano, or what they claim as their special right to the words steel or grand as applied to pianos, and we promise them on our part to take care not to interfere with their legal rights. Our Caution' advertisement we believe to be perfectly true."

Gentlemen, although he says that in his letter, he has not thought it right to put it on record now.
fore we are not at all troubled with that; because, although he says he believes it to be true, he has not ventured to assert that Kirkman's pianos have no more steel in their construction than any other common piano, or anything of the kind.

Then he says, "Our object in issuing it was to prevent our friends and the public in Halifax from being deceived by the false and absurd statements made by some of the dealers here. The following is one more sample in addition to those already referred to. It is painted up in very large letters at the Halifax railway station, covering the end of a building, Registered trade mark, the Globe, Lucas & Pyne, piano manufacturers, 80, Bishopgate Street, London.'

It is also advertised in various other ways, that These instruments are manufactured solely for W. Hemmingway on the German principle, with steel bridges, producing a magnificent quality of tone, and though so low in price as 22 guineas, are warranted to be made of the best materials.' Messrs. Kirkman will be aware that no such firm of pianoforte makers is in existence, and that the instruments are spurious, being made by small inferior makers. We think that all honest and respectable makers and dealers will agree with us that it is time the public were put on their guard as to such statements.

We shall be glad to receive a reply, and hope our explanation will be satisfactory, and prove to Messrs. Kirkman that we have no wish to interfere with them. We remain, Gentlemen, yours respectfully, Pohlmann & Son."

Gentlemen, the advertisement that he refers to there does not at all carry out what he says, because it merely speaks of a quantity of pianos, both iron and steel, by the most celebrated makers which are advertised-among others by Mr. Kirkman.

Then, on the 30th January, comes the answer to that - "Sir, we have duly received your letter of the 27th instant, which cannot be accepted as satisfactory for a moment. Everybody reading your caution would naturally suppose it was intended to apply to Steel Grand Pianofortes of Messrs. Kirkman, the manufacturers, and you must as publicly make it clear that such was not the case, and that it was not true in respect of them or their instruments."

Now really, gentleman, that is all we ask to-day-that it shall be made satisfactory and clear to the public that the defendant did not intend to charge Messrs. Kirkman with this gross fraud of selling or advertising Patent Steel Grand Pianos that do not contain in their construction any more steel than an ordinary piano.

"This action can be stayed upon your signifying your willingness to do what our clients require you to do, and to free them from law charges."

Nothing can be more reasonable than that; but so far from doing that, we are obliged to bring this action; and when the action is brought there is no justification at all put on the record; and, really, under these circumstances, I think I am entitled to ask at your hands, unless my friend meets this case in a proper spirit-which I should be very glad to see that you will give a serious sum; because I shall prove to you that it really has influenced the sale of the plaintiff's pianos in Halifax considerably.

All the Halifax dealers distinctly say they cannot sell these instruments at all until this matter is entirely cleared up, so that the public may understand that for a Steel Grand they are getting a Steel Grand. With regard to these two pianos mentioned in Mr. Pohlmann's letter, if it be at all material - I cannot see that it is I will call Mr. Hemingway to prove the occasion, and I will leave my friend to cross-examine him in any way he likes about that matter.

But that has nothing to do with Messrs. Kirkman. Messrs. Kirkman carry on their business in this way by selling their pianos at various places. This caution has been found most injurious to their business, and they have no alternative but to come before a jury and seek the redress which I am sure they will receive at your hands." The Musical World, Volume 51, 27/09/1873, p. 648-650