About two months after the new firm began building, the elder Everest, who had been in California, returned to Rochester, and soon after had several interviews with Miller. He impressed on the man, as his son had done, that the Buffalo Lubricating Works would never succeed. He told him that the Vacuum meant to bring suit against them for infringing their patents, and would get an injunction and stop the works; that Miller would lose all the money he had put in. To save himself, Everest advised Miller to come back to the Vacuum. "But that would leave them in a pretty bad fix," Miller said. "That is exactly what I want to do," replied Everest. The fear that the new concern might be ruined through the hostility of the Vacuum, and he lose his savings, seems to have preyed on Miller's mind. He took his wife into his confidence, and she, too, became alarmed. He began to neglect his work in Buffalo. He was often away at nights. Matthews began to be worried by Miller's neglect and absence, and to watch the stations to find, if possible, where he went. Miller's question now became, how could he get away from the Buffalo firm? He had signed for the company a note for $5,000. He was under contract for a term of years. He discussed the question with the Everests, and they advised him to see his lawyer. On the seventh of June, according to H. B. Everest, [111] who went with him to help present the case, Miller did consult George Truesdale, a lawyer of Rochester, who had always handled his business. Mr. Truesdale afterwards told in court what occurred:

"Mr. Everest stated that Miller had left his employ, and got engaged with another oil concern in the City of Buffalo; that he desired to get back again; he wanted him to come back; and he said he supposed Miller had explained to me his situation, and the obligations he was under to the Buffalo company. I told him that he had made some statements to me about his contract with the parties in Buffalo; that he had spoken about being an endorser or party to the note made by, I think he said, Matthews and Wilson and himself, and I think another party — four or five of them had made, endorsed a note to raise money, done to start the Buffalo business, and that he had a contract or an arrangement with them to go into a company at Buffalo to manufacture oil, and that he wanted to know how he could get out of that arrangement. I stated what I had said to Miller, that he would, of course, be liable on the note, if he was charged properly when it became due, and that if he wanted to get out of that arrangement my advice to him had been to see if he couldn't get released; if they wouldn't release him or buy out his interest; then, if he couldn't do that, the only other way I saw was for him to leave them and take the consequences. I told him that I did not know the exact terms of his contract, but, if he had entered into a contract and violated it, I presumed there would be a liability for damages, as well as a liability for the debts of the Buffalo party. Mr. Miller and Everest both talked on the subject, and Mr. Everest says, 'I think there is other ways for Miller to get out of it.' I told him I saw no way except either to back out or to sell out; no other honourable way. Mr. Everest says, substantially, I think, in these words: 'Suppose he should arrange the machinery so it would bust up, or smash up, what would the consequences be?' — something to that effect. 'Well,' I says, 'in my opinion, if it is negligently, carelessly done, not purposely done, he would be only civilly liable for damages caused by his negligence; but if it was wilfully done, there would be a further criminal liability for malicious injury to the property of the parties, the company.' Mr. Everest said he thought there wouldn't be anything only civil liability, and said that would — he referred to the fact that I had been police justice, had some experience in criminal law — and he said that he would like to have me look up the law carefully on that point, and that they would see me again."

Miller's version of this interview is similar:

"I think Mr. Truesdale or myself, I am not positive which, asked the question what means I could take to get out of the company. H. B. says, 'There is a good many ways he could get out.' Either Mr. Truesdale or myself asked him how. 'Well,' he says, 'he can cut up something or do something to injure them; something of that kind, to get out'; H. B. said this. Mr. Truesdale spoke up and said, 'You must be very careful what you do or you will lay yourself criminally liable.' Mr. Everest says to me, 'There is ways that you can get out.' I says to him, 'You wouldn't want me to do anything, would you, to lay myself liable?' I think Mr. Truesdale spoke up and says, 'You must be very careful or you will end in state's prison,' — that is, I. There was considerable conversation I cannot just exactly remember; I have told all I recollect at present. Mr. Truesdale asked me if I had a contract with the Buffalo parties; I told him I had; 'Well,' he says, 'the best thing you can do is to stay there, then,' or something of that kind. I cannot say those were his exact words. H. B. Everest says, 'If he comes back with us, why, we will look after him.' I think Mr. Truesdale said that these men would be after me for leaving them. I think I told him the terms of the contract. . . . Mr. Everest says, 'They will have to catch Miller before they can do anything to him; we will take care of him.'" [112]

In a talk with Miller a little while after this, C. M. Everest said to him: "You go back to Buffalo and construct the pipes so that they cannot make a good oil, and then, I think, if you would give them a little scare. You might scare them a little, they not knowing anything about the business, and you know how to do it." On account of Miller's neglect, the first still in the new refinery was not ready to be fired until June 15 — it was an ordinary still, as was the second one built — the third only was built for the Vacuum process. As soon as the still was ready it was filled with some 175 barrels of crude oil and a very hot fire — "inordinary hot" was the droll description of the fireman — built under it. Miller, who superintended the operations, swore at the fireman once or twice because the fire was not hot enough, and then disappeared. While he was gone the brickwork around the still began to crack. The safety valve finally blew off, and a yellow gas or vapour escaped in such quantities that the superintendent of a neighbouring refinery came out and warned the fireman that he was endangering property. Miller was hunted up. He had the safety valve readjusted — it was thought by certain witnesses that he had it too heavily weighted — and ordered the fires to be rebuilt, hot as before. He again disappeared. In his absence the safety valve again blew off. The run of oil was found to be a failure. It was not a pleasant augury, but oil refiners are more or less hardened to explosions and no one seems to have thought much of the accident. Nobody was injured; nothing was burned, nothing but 175 barrels of oil spoiled; that, in an oil refinery, is getting off easy.

On the 23d of June Miller made the transfer of property advised by the Everests, talked over things with Truesdale, and a week later left the Buffalo Works suddenly on receipt of a telegram, and joined H. B. Everest at the Union Square Hotel in New York. Here Everest advised him to telegraph his wife to move at once to Rochester lest Matthews attach their household goods, and then proposed the two go to Boston. The only event of interest at the Union Square Hotel was an entirely casual meeting with H. H. Rogers, one of the directors of the Vacuum Oil Company. Mr. Rogers seems to have had no conversation with Miller other than to remark, in leaving, that he would see him the next day if he did not go to Boston. The men did, however, go to Boston, where they registered as "H. B. Everest and friend," and where several times, at least, Everest introduced Miller under an assumed name. They junketed about for some days on what Everest tried, with indifferent success, to persuade Miller was a pleasure excursion! While they were amusing themselves, Everest hired Miller at $1,500 a year to "do any fair job we put him at, either at Rochester or some other place." The job turned out to be a rambling one — a few weeks of semi-idleness in Boston — then nothing until September, when he undertook to supervise the drilling of a salt well in Leroy, New York. This lasted until February, 1882; then nothing until May, when, on the advice of H. B. Everest, who had returned to California, Miller went there: "Pack up, sell your property there and come on. Come right to my house and I will help you to get a place and show you how to raise fruit and be an independent man." Miller went, the Vacuum Oil Company paying his expenses. On his arrival he was put to work in a cannery. The Everests explained that they made this arrangement because they thought it would put Miller where he could not be brought back to trouble them any more.

In the meantime things were going badly with the Buffalo Lubricating Works. Miller's loss was a severe one. The men were all novices in making oil, save Wilson, and he was on the road, and they seem to have been unable to find a competent manager. The Everests soon succeeded, too, in getting Wilson out of the new firm by bringing a suit against him for damaging its business by unlawfully leaving it. The suit was withdrawn and the costs paid, when Wilson consented, in December, 1881, to leave the Buffalo Works. Wilson's loss was particularly serious, as he was a salesman of experience.

The suits for infringing the Vacuum patents and processes, which Everest at the start had warned Matthews would be brought, were begun in September, 1881 — four separate suits within a year. Matthews, as has been said, had convinced himself that the patents were not valid, and some time in the spring of 1882 he saw H. H. Rogers in New York concerning the suits. "I told him I had come in to talk with him about the patent litigation, or suits that were begun by the Vacuum Oil Company against my company," Matthews said in his testimony. "'Well,' he said, 'well, what about it?' — something like that. I told him that the product patent, that I well knew, was without merit, and that he knew it was without merit, and I could not see what object or good they could get out of it by bringing suit on that patent. And also the steam patent I considered was without value, and that he knew it was without value. He said that if one court did not sustain the patents they would carry along up until we got enough of it — that was the substance of that talk."

Matthews was evidently discouraged by the result of his talk with Mr. Rogers, for, meeting Benjamin Brewster, of the Standard Oil Company, he offered to sell the Buffalo Lubricating Works for $100,000. The offer was refused, and the suits against which Mr. Matthews protested were pushed. On the 21st of February, 1882, the Vacuum Oil Company filed a complaint in the United States Circuit Court of the Northern District of New York, asking that the Buffalo company be prevented from manufacturing lubricating oils, on the ground that the Vacuum Oil Company had a patent covering the process of manufacturing lubricating oils. The action was regarded as unfounded by the court, and was dismissed on July 16, 1884, "the ground being that the letters sued on in this cause are void." April 25, 1882, another action was commenced by the Vacuum Oil Company against the Buffalo company to obtain an injunction and an accounting for damages upon the ground that the Buffalo company was using an apparatus covered by a patent belonging to the Vacuum Oil Company, but this action also was dismissed March 17, 1885, upon the ground that the letters patent sued upon were "null and void." On February 23, 1883, the Vacuum Oil Company commenced still another action against the Buffalo company asking for an injunction to prevent the Buffalo company from using a label advertising "The Acme Harness Oil made by the Vacuum Process," because the Vacuum Company had long used a somewhat similar label advertising "The Vacuum Harness Oil manufactured by Vacuum Oil Company," but the judge in the case decided that the Vacuum Company had no more right to use labels than the Buffalo company. This decision has since been affirmed by the General Term of the Supreme Court. Still another action was brought against the Buffalo company April 25, 1882, for infringing a patent on a steam process, also a patent upon a fire test. This action resulted in a decree sustaining the fire-test patent, but declaring the steam patent void. The case was then referred to James Breck Perkins, of the Rochester bar, to decide the amount which the Buffalo company had infringed on this patent. Mr. Perkins on a number of different occasions took a large amount of proof there in behalf of the Vacuum Company upon which its counsel claimed that it was entitled to $12,000 damages upon the accounting. The Buffalo company submitted no proof in contradiction, but insisted that the whole proof showed nothing more than a purely technical infringement of the patent, and this view was sustained by Mr. Perkins in his report which awarded six cents damages against the Buffalo company.

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