author: Pee Curiam,

text:
    Hamilton, Appellant, v. Central Railroad of New Jersey.

      Negligence — Railroads—Crossing tracks — “Stop, look and listen"— Death — Presumption—Evidence.
    1. In an action to recover damages from a railroad company resulting from the killing of a man at a grade crossing where it appears that the deceased entered upon the track and was instantly struck by a moving train which he could have seen if he had looked just before going upon the track, a legal presumption is raised that he did not stop, look and listen, which rebuts any presumption that he did.
    2. In an action against a railroad company to recover damages for the death of a man killed at a private crossing, a judgment for defendant n. o. v. is properly entered, where the evidence shows that if the deceased had stopped at a point five and one-half feet, or a point six feet, or a point seven feet from the track, he could have seen the approaching engine in time to save himself, that instead of doing so he walked forward with his head down, carrying a railroad tie on his shoulder, and was struck by the tender of the engine moving backwards either before or immediately after stepping upon the track.
    Argued Jan. 6, 1910.
    Appeal, No. 86,
    Jan. T., 1909, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 952, for defendant non obstante veredicto in case of Margaret Hamilton v. Central Railroad of New Jersey.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    At the trial the jury returned a verdict for plaintiff for §4,000. Subsequently the court entered judgment for defendant non obstante veredicto.
    Magill, J., filed an opinion which was in part as follows:
    The plaintiff’s husband, William Hamilton, was killed February 22, 1906, by an engine of the defendant company operated by its engineer and fireman while running south on the tracks of the Baltimore & Ohio Railroad near South street in the city of Philadelphia. The deceased was, and had been for three months, employed by the Black Diamond Coal Company. The yard of this company fronts upon the Schuylkill river north of South street bridge and is intersected by the tracks of the Baltimore & Ohio Railroad Company, part of the coal company’s yard being on the westerly or riverside and another part on the easterly side of the railroad tracks. From the part of the yard on the riverside to the part on the easterly side of the tracks a crossing was constructed by planking between the rails. This crossing is about ten feet in width and crosses the tracks diagonally in a northeasterly and southwesterly direction. At the point of the accident there are four tracks, the easterly and westerly tracks being sidings and used for freight purposes, while the two intermediate tracks are used for the general traffic of the road. The distance between the rails of each track is four feet, eight and one-half inches; while the distance between the tracks, measured parallel with the crossing, is eight feet, and measured along the crossing, at right angles to the rails, this distance is seven feet, three inches.
    The yard of the Black Diamond Coal Company on the westerly side of the track is inclosed by a board fence with a gate opening opposite the crossing at a distance of twenty-five and one-half feet from the westernmost rail of the westerly track. At the time of the accident, shortly after midday of February 22, 1906, the weather was clear and bright. William Hamilton was engaged in carrying railroad ties from the westernmost part of the coal company's yard across the railroad tracks to that portion of the. yard on the easterly side. These ties he carried upon his shoulder, one at a time, and had safely crossed the tracks and deposited two or three ties in the yard on the easterly side, before the accident.
    When the accident occurred he had passed from the yard of the coal company on the westerly side of the track with a tie (on his right shoulder, according to the plaintiff’s witness, and on his left shoulder, according to the defendant’s witnesses), the end of which protruded for about two feet in front of him; he had walked across the westerly or' side track, across the intervening space between it and the south-bound track, and when just about to step upon the south-bound track he was struck by the corner of the tender of defendant’s engine then running backward in a southerly direction. Whether the tender struck his body or head, or whether it struck only the tie which in turn struck Hamilton, is not entirely clear under the evidence. From the contact with the engine, however, he was thrown a distance of some twenty to thirty feet and injured in such a way that he died shortly afterwards.
    The evidence in this case clearly demonstrates that the proper place to have stopped, looked and listened for an approaching train was on emerging from between the freight cars standing upon the siding, which were known or -must have been known to the deceased to have been idle cars in no danger of moving. If he had stopped, as he could well and safely have stopped, at a point five and one-half feet west of the track on which the engine approached, after crossing the siding, he would have had an unobstructed view of the track for a distance of 1,870 feet; had he stopped at a point six feet back from the track on which the engine approached he would have had a view of the track for a distance of 392 feet, and at a distance of seven feet back from this track he would have had a view of ninety-two feet. At any one of these points the deceased could have stopped with perfect safety to himself. The evidence all goes to indicate that until he approached within a distance of eight feet of the track his view of the approaching engine would have been for a distance of less than ninety-five feet. The testimony of plaintiff’s witness, Ross, clearly shows that Hamilton did not stop after emerging from between the freight cars and coming within his line of vision, but that he walked forward until the tender of the engine struck him or the tie which he was carrying upon his shoulder.
    The evidence of the defendant’s witnesses, Divine and Ward, also shows conclusively that from the time Hamilton emerged from the coal company’s yard on the westerly side of the railroad, a distance of twenty-five feet from the track ' on which he was struck, he did not stop, but walked forward with his head down, with a tie on his left shoulder, and apparently without looking to the left or to the right, until going upon or about to step upon the south-bound track, where he was struck and killed. It is, therefore, evident that the deceased did that which an ordinarily prudent man would not have done, that he did not exercise ordinary care under the circumstances. He had been working at this place for months, and was thoroughly familiar with the surroundings and conditions there existing. It was clearly his duty to have stopped before reaching the south-bound track, at a point where he could have had a view of the approaching train, and could have heard it had he listened, and this he could.safely have done either upon the side track or at a point between the two tracks where he could have stopped in perfect safety. That he did not do so is clear not only from the evidence but from the fact that he was struck by the tender of the engine either before or immediately after stepping upon the track.
    The case in its facts nearly approaches Keppleman v. Phila. & Reading Railway Co., 190 Pa. 333, in which it was said, “It must be very obvious that the proper time and place for the plaintiff to have stopped and looked was just when he emerged from the opening in the standing coal train and before stepping on the north track. He would then have had a view of the train for a considerable distance in the direction from which the engine came. His unfortunate mistake was in not looking then. In answer to the question whether if he had stopped and looked before stepping on the north track he could have avoided the collision he truthfully answered in the affirmative.”
    In this case the testimony of Ross, plaintiff’s witness, as well as the testimony of defendant’s witnesses, shows conclusively that if Hamilton had stopped and looked before stepping on the south-bound track he could have avoided the collision.
    In Sullivan v. Railroad Co., 175 Pa. 361, it is said by Mr. Justice Fell, “The presumption that deceased performed his duty is based upon the fact that the natural instincts of men leads them to avoid injury. It prevails in the absence of direct testimony upon the subject, but it may be rebutted by proof of facts and circumstances, as well as by direct evidence. It is demonstrated by the testimony that if he obeyed the legal injunction he saw and heard the approaching train; and the only deduction possible is that he did not look and listen, or that seeing and hearing he went on regardless of the danger:” citing Myers v. B. & O. Railroad Co., 150 Pa. 386, in which it is said, “ One who is struck by a moving train which is plainly visible from the point he occupied when it became his duty to stop, look and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence and to have gone negligently into an obvious danger.” And in Urias v. Penna. R. R. Co., 152 Pa. 326, it was said by Chief Justice Paxson, “If a person in approaching a track could have had an unobstructed view of the track for 1,950 feet at a point eighteen feet from the track, and he goes upon the track and is injured, it is vain for him to say that he stopped, looked and listened at the point of unobstructed view.”
    And in Beach v. Penna. R. R. Co., 212 Pa. 567, it is said by Mr. Justice Fell, “It has been said repeatedly that one who goes on a railroad track immediately in front of á moving train which he saw or could have seen if he had looked at the proper place, will be presumed to have been negligent, is in its nature applicable only to clear cases, where the facts and the inferences to be drawn from them are free from doubt, and the conclusion of negligence is irresistible: McNeal v. Pittsburg, etc., Ry. Co., 151 Pa. 184; Muckinhaupt v. Erie Railroad Co., 196 Pa. 213.”-
    Again, in Howard v. Baltimore & Ohio R. R. Co., 219 Pa. 358, it is said by Mr. Justice Potter, “We have said many times that the rule set forth in Carroll v. Railroad Company, 12 W. N. C. 348, is only applicable to clear cases. It applies only where a person enters upon a railroad track and is struck by a moving train so instantaneously as to raise a legal presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is doubt as to negligence on the part of the plaintiff the case is for the jury.”
    And in Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610, it is said, “When testimony offered by defendant is of a nature to defeat the plaintiff’s claim, is not in itself improbable, is not at variance with any proved or admitted facts or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief, and if they do so it is the duty of the court to set the verdict aside. Where the proof is of such a character the court may refuse to submit it at all and direct a verdict for the defendant.”
    We are of the opinion that the presumption of the performance of duty by the deceased in this case has been fully rebutted by proof of facts and circumstances as well as by direct evidence, and that it has been demonstrated by the testimony that if Hamilton had obeyed the legal injunction to stop, look and listen before going upon or approaching the track, he would have seen the approaching train, and that the only deduction possible is that he did not look or listen or, that seeing and hearing he went on regardless of the danger, as was said in Sullivan v. Railroad Co., 175 Pa. 361; and that this case comes within the rule as reiterated in Howard v. Baltimore & Ohio R. R. Co., 219 Pa. 358, that the deceased, having entered upon a railroad track and having instantaneously been struck by a moving train, a legal presumption is raised that he did not stop, look and listen, which rebuts any presumption that he did so, and that there is in this case no doubt as to the contributory negligence on the part of William Hamilton, husband of the plaintiff. Having arrived at this conclusion it becomes unnecessary for us to consider the question of negligence on the part of the defendant or the question of whether the defendant or the Baltimore & Ohio Railroad Company would be liable, if either.
    The motion of the defendant is therefore granted, and judgment is now entered for the defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Charles Biddle, with him C. Bradford Fraley, for appellant.

      Arthur G. Dickson, for appellee.
   Pee Curiam,

February 14, 1910:

The facts of the case and the law applicable thereto are very fully and clearly stated in the opinion of the learned trial judge, and the judgment is affirmed for the reasons given by him.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Burton v. Miller, Appellant.

      Contract — Sale—Damages—Purchasing in the market — Substitution of goods in hand.

    Where a vendor refuses to deliver goods sold, the vendee may go into the market and purchase other goods, and charge the vendor with the difference; but he is not obliged to do this if he has on hand other goods of the same kind which he had previously purchased at a less price. In such a case he may substitute these goods for those which the vendor failed to deliver, and charge the latter with the difference between the price paid for them and the contract price of the goods not delivered.
    Argued Jan. 6, 1910.
    Appeal, No. 188,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1907, No. 93, on verdict for plaintiff in case of E. P. Burton & Company, to use of E. P. Burton Lumber Company, and E. P. Burton Lumber Company v. Frank Miller, trading as the Frank Miller Lumber Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mosciizisker, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Martin, P. J.
    The court charged in part as follows:
    In this case it appears from the evidence that the Burton Lumber Company for a certain price agreed to deliver to the Miller Lumber Company a quantity of lumber at Bridgeport. There was evidence that the contract was rescinded, that its terms were changed and that it was broken.
    There were two cargoes of lumber delivered by the Burton Lumber Company to the Miller Lumber Company, one loaded on the vessel “‘Flora Rogers,” and the other on the “Humarock.” This lumber was not paid for by the Miller company.
    In defense of their refusal to pay it is claimed that under the terms of the contract between the E. P. Burton Lumber Company and the Frank Miller Lumber Company, the Burton Lumber Company had agreed to supply a fixed amount of lumber at a certain rate; that when the' market price commenced to rise the Burton company refused to deliver the balance of the lumber called for under the terms of the contract, and if the Miller company had received the lumber that they could have sold it at market rates, and therefore they suffered a loss. There was evidence that the Miller company purchased lumber of the same kind from the Atlantic Coast Lumber Corporation at a higher price than that which they agreed to pay the Burton company, and it was claimed that the Burton company should be compelled to make good the difference in price between that at which they agreed to sell and the price paid to the Atlantic Coast Lumber Corporation, which it is alleged is less than the market prices at that time for lumber of the same kind. [Assuming that the Miller company have proved that the Burton company broke the contract, they have not offered legal evidence of any damages suffered by reason of that fact. If they had purchased the lumber to take the place of lumber they were entitled to receive from the Burton company at market prices, or if it had been shown to be impossible to obtain the same kind of lumber, or if the Atlantic Coast Lumber Corporation’s lumber was purchased in substitution of the lumber with which they were required to complete outstanding contracts the question would have been referred to you to determine whether or not the contract had been broken by the Burton company and whether the damages to the' Miller Lumber Company was more than the Miller company owe the Burton company for the two cargoes.] [1] [The view I take of the evidence is that there is no testimony to warrant you in assessing damages to the Miller company by reason of the fact, if it is a fact, that the Burton company broke the contract. They did not buy lumber in place of that which is claimed to be due them under the contract with the Burton company, and the lumber which was purchased by them from the Atlantic Coast Lumber Corporation had no relation to this contract, was contracted for independently and its alleged substitution was a mere matter of bookkeeping.] [2]
    Verdict and judgment for plaintiff for $8,396.14. Defendant appealed.

      Errors assigned among others were (1, 2) above instructions, quoting them.

      Harry M. McCaughey, with him William S. Furst, for appellant. —
    In Pennsylvania the rule of law which obtains in respect to the measure of damage recoverable for the breach of contract, is the amount necessary to put the injured party in the same position as if there had been no breach. It is not the amount required to put the parties in the sam'e position as if there had been no contract. Hence, the measure of damage for the failure of a vendor to deliver an article is the difference between the market value at the time and place of delivery and the contract price. This rule does not apply when the vendee purchased the article to supply the vendor’s breach at less than the market value. In this case, the vendee can recover no more than his actual loss: McHose v. Fulmer, 73 Pa. 365; Fessler v. Love, 43 Pa. 313; Saxe v. Penokee Lumber Co., 159 N. Y. 371; Lawrence v. Porter, 63 Fed. Repr. 62; Marsh v. McPherson, 105 U. S. 709; Creve Cœur Lake Ice Co. v. Tamm, 90 Mo. App. 189; Theiss v. Weiss, 166 Pa. 9; Morris v. Supplee, 208 Pa. 253; Lentz v. Choteau, 42 Pa. 435.

      Sharp, Alleman & Moise, for appellee.
    — Where the seller refuses to deliver and the buyer supplies himself before the contract date of delivery has arrived, or otherwise than by purchase in open market, the measure of damages to the latter is not the difference between the market price on the date of delivery and the contract price, but is the difference between the price at which the goods were actually bought and the contract price. In such a case, the burden is upon the buyer to show at what price he actually supplied himself with the goods: Theiss v. Weiss, 166 Pa. 9; Morris v. Supplee, 208 Pa. 253.
   Opinion by

Mr. Justice Potter,

February Í4, 1910:

In this case the vendor sought to recover the price of lumber delivered, and the vendee sought to recoup damages for non-delivery of other lumber which he claimed was due under the contract. The defendant maintained that the plaintiff had agreed to supply a fixed amount of lumber at a certain rate; that the market price advanced, and the refusal of the plaintiff to deliver the balance of the amount purchased, made it necessary for the defendant to draw upon and make use of other lumber of the same kind and quality, which he had purchased at a higher price than that at which the plaintiff had agreed to supply the lumber. The trial judge declined to permit the jury to determine whether or not the contract had been broken, and if so the amount of the damages suffered by the defendant, because the defendant company did not actually go out and purchase the lumber which it needed to make good the shortage, but instead of so doing, it made use of other lumber which it had on hand, which it had previously purchased. In other words, the trial judge assumed that there was a duty upon the defendant to go into the open market and actually purchase lumber, before it could be legally entitled to claim that it was damaged by the failure of the plaintiff to deliver lumber under the contract. We think this was a misconception of the proper rule.

In Morris v. Supplee, 208 Pa. 253, Chief Justice Mitchell said (p. 258): “When a vendor refuses to deliver goods sold the buyer may wait until the contract time of delivery has passed and then go into the market arid purchase, holding the seller liable for any loss. In such cases the measure of damages is the difference between the contract price and any greater market price that the buyer has been compelled to pay, or in other words the actual loss to the buyer from the breach.” Then he goes on to point out that the buyer is also at liberty to supply himself before the contract date of delivery, taking the risk that he may pay more than the market price may be at the contract date of delivery. And he sums it up by saying: “The foundation of the rule is that he is entitled to compensation for his actual loss, provided always that he keeps the loss as small as he reasonably can.”

In the present case, as we understand the evidence, it appears that the defendant happened to have on hand a supply of similar lumber, previously purchased, which would answer the required purpose, and while he was under no obligation to do so, yet he did substitute that for the supply which he claimed under the contract was due him from the plaintiff. The lumber which he thus substituted cost him less than the market price of the same lumber at the time of substitution, and if the plaintiff company was liable at all, it was manifestly to its advantage to have this lumber substituted at the reduced price, rather than that the defendant should go into the open market and purchase other lumber at the then prevailing price. Certainly, the plaintiff company can have no just cause of complaint by reason of the fact that the defendant used other lumber, previously purchased at a less price, to make up for the alleged shortage upon the part of the plaintiff.

The defendant should not have been called upon to forego any advantage when he made use of the lumber which he already had on hand. Presumably that lumber was worth the market price which prevailed at the time of the breach of the contract which required the substitution. At any rate, we are unable to see any good reason why the fact that he made use of other lumber previously purchased, should in any way preclude him from claiming damages for a breach of the contract upon the part of the plaintiff. In Mechem on Sales, sec. 1738, what seems to us a very reasonable rule is thus laid down: “It is not essential .to the operation of this rule giving the difference between the contract and the market price, that the buyer shall have actually gone into the market and bought other goods to supply the place of those not delivered.” The writer then cites this extract from Saxe v. Penokee Lumber Co., 159 N. Y. 371: “It would not advantage the defaulting party if he should do so; for, if he buys at the market value, the result to the other party is the same as if he simply proved the market value.” Compensation for the actual loss sustained, is what the injured party is entitled to recover.

This case must go back to be submitted to the jury for them to determine as a matter of fact whether the plaintiff committed a breach of the contract. If so, then the defendant is entitled to recoup the loss sustained thereby. As a rule this loss would be the difference between the contract price and the market value of the lumber at the date of the breach of the contract. In the present case the defendant has kept the loss considerably below what it would otherwise have been, by the substitution of lumber previously purchased at less cost than the market price at the date of the breach, and has thus reduced the amount of the damages below what it would have been-under the usual rule.

The first and second assignments of error.are sustained, and the judgment is reversed with a venire facias de novo.


author: Mr. Justice Moschzisker,

text:
    Suburban Press v. Philadelphia Suburban Publishing Company, Appellant.

      Trade-mark — Trade name — Publication — Unfair competition in business — Equity—Injunction.
    1. There are two classes of cases involving judicial interference with the use of names: first, where the intent is to get an unfair and fraudulent share of another’s business, and, second, where the effect of defendant’s action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the plaintiff.

      2. The publisher of a magazine named “Suburban Life” is entitled to an injunction to restrain another publisher from using the title “Philadelphia Suburban Life” for another magazine, where it appears that in addition to the similarity of names the magazine known as “ Philadelphia Suburban Life” bore a striking resemblance to the other in size, style, character of paper, illustrations, printed matter, and in general scheme of title-page, and that it was started later than the other, and circulated in practically the same territory.
    Argued Jan. 7, 1910.
    Appeal, No. 367,
    Jan. T., 1909, by defendant, from decree of C. P. No. 1, Phila. Co., Sept. T., 1909, No. 2,510, awarding injunction in case of Suburban Press v. Philadelphia Suburban Publishing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Magill, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding preliminary injunction.

      William H. Peace, for appellant.
    — Plaintiff says, and the publication itself demonstrates, they do not indicate anything except the nature of the contents or subject-matter, hence are truly and purely descriptive.
    If plaintiff’s contention is right, no one may write or publish a book on suburban life, and by its title truthfully describe its contents.
    It has been held that the title to a book cannot be copyrighted independently of its contents. The simple title of a book or magazine or other periodical is not subject to be copyrighted. It must be protected as a trade name: Jollie v. Jaques, 1 Blatchford’s Cir. Ct. 618; Osgood v. Allen, 1 Holmes, 185; Canal Co. v. Clark, 80 U. S. 311; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537 (11 Sup. Ct. Repr. 396); Glendon Iron Co. v. Uhler, 75 Pa. 467; Laughman’s App., 128 Pa. 1; California Fig Syrup Co. v. Stearns, 67 Fed. Repr. 1008; Hoyt v. Lovett Co., 71 Fed. Repr. 173; Proctor & Gamble Co. v. Globe Refining Co., 92 Fed. Repr. 357; Kolb v. Stewart Bread Co., 198 Pa. 390; Selchow v. Baker, 93 N. Y. 59. '
    The following words have been held to be descriptive and therefore incapable of adoption as a trade-mark or trade name: “Cough Remedy” as applied to cough remedy: Gilman v. Hunnewell, 122 Mass. 139. “Standard Computing Scales” as applied to scales: Scale Co. v. Scale Co., 118 Fed. Repr. 965. “Elastic Seam” as applied to men’s drawers: Newcomer v. Scriven Co., 168 Fed. Repr. 621. “High Standard” as applied to paint: Lowe Bros. Co. v. Varnish Co., 168 Fed. Repr. 627. “Antiquarian” as applied to a book store: Choynski v. Cohen, 39 Cal. 501. “Pictorial or Illustrated” as applied to books: Spottiswoode v. Clarke, 2 Phillips’ Ch. Reps. 154. “ Liquid Glue ” as applied to glue: Cement Co. v. LePage, 147 Mass. 206 (17 N. E. Repr. 304). “The Mammoth Wardrobe” as applied to Wardrobes: Gray v. Koch, 2 Michigan, N.P. 119,.
    Appellant claims it has used the words “Philadelphia Suburban Life” with equal'truth on its magazine as indicative of its subject-matter, as plaintiff claims to have done, and that appellant has an equal right to use the words thus truthfully, for the same purpose plaintiff has: Snowden v. Noah, 1 Hopkins’ Chancery Reps. 396; American Grocer Pub. Assn. v. Grocer Pub. Co., 51 How. 402.
    The following are cases relating to publications held not to be infringements: Spottiswoode v. Clarke, 2 Phillips’ Ch. Reps. 154; Johnson Co. v. Electric Age Pub. Co., 14 N. Y. Supp. 803; Walter v. Emmott, 54 L. J. Ch. 1059.

      Sharp, Alleman & Moise, for appellee.
    — This being an appeal from a preliminary injunction, a heavy burden rests upon the appellant to establish that the decree appealed from is clearly erroneous and that the continuance of the injunction will work great injustice: Snyder v. Brown, 197 Pa. 450; New Castle v. Central D. & P. Telegraph Co., 202 Pa. 425; Truby’s App., 96 Pa. 52.
    To contend that “Suburban Life” is a phrase in general use to designate a magazine or periodical is, of course, absurd. It is equally absurd to contend that “Suburban Life,” used as the name of a magazine, is any less entitled to the protection of equity than “Comfort,” “American Grocer,” “Social Register,” “Chatterbox,” or the other names passed upon in the decisions set forth below.
    The authorities as to geographical names, cited by appellant, have of course no more application to the case than the authorities as to “cough remedy,” “liquid glue,” etc., or those as to copyrights.
    The principles governing cases like the present one have been announced by the Pennsylvania courts and other jurisdictions as follows: Portuondo Cigar Mfg. Co. v. Cigar Mfg. Co., 222 Pa. 116; American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189; Pratt’s App., 117 Pa. 401; Dixon Crucible Co. v. Guggenheim, 2 Brewster, 321; Metzler v. Wood, L. R. 8 Ch. Div. 606; Clement v. Maddick, 5 Jur. (N. S.) 592; Mack v. Petter, L. R. 14 Eq. 431; Hogg v. Kirby, 8 Vesey Jr. 215; Gannert v. Rupert, 127 Fed. Repr. 962; Social Reg. Assn. v. Howard, 60 Fed. Repr. 270; Estes v. Leslie, 27 Fed. Repr. 22.
   Opinion by

Mr. Justice Moschzisker,

February 14, 1910:

The appellant, a New Jersey corporation duly registered in Pennsylvania, with a place of business in Philadelphia, was restrained from using the words “Philadelphia Suburban Life” as the title of a monthly magazine published by it. The appellee, a New York corporation duly registered in Pennsylvania, with its principal place of business in the city of New York, is the publisher of a monthly magazine started in 1904, named “Suburban Life.” This periodical has a circulation of about 40,000 copies a month, of which nearly 4,000 copies are sold in Pennsylvania, and approximately one-half of that number distributed in Philadelphia and vicinity. The appellant was incorporated in 1909, and the first number of its magazine was issued in the month of September of that year. The trial judge finds that the magazine published by the appellant bears a striking resemblance to that published by the appellee in size, style, character of paper, illustrations and printed matter, and in the general scheme of the title-page, and that the great similarity of names, general appearance and subject-matter of the two magazines is by design and not by accident. The learned judge further finds: “It is therefore perfectly apparent that one object of the defendant was to imitate as nearly as possible the magazine or periodical published by the plaintiff, in general appearance and subject-matter of contents, as well as in name, and to thereby gain an unfair advantage over the plaintiff in its trade, and to reap the benefit of its years of labor, the skill and the money employed by the plaintiff and its predecessor in introducing its magazine and building up its business. It is also made clear by the evidence that the great similarity of the two periodicals, particularly in name, will tend to deceive, confuse and mislead the reading and advertising public.”

The trial judge saw and heard the witnesses and inspected the documentary evidence, and his findings will not be disturbed except for manifest error. After an examination of the evidence we cannot say that such is the case with respect to any of the findings. “There are two classes of cases involving judicial interference with the use of names: first, where the intent is to get an unfair and fraudulent share of another’s business; and, second, where the effect of defendant’s action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the plaintiff:” American Clay Manufacturing Company v. American Clay Manufacturing Company, 198 Pa. 189. The present case falls within both of these classes.

The decree is affirmed and the appeal is dismissed at the cost of the appellant


author: Per Curiam,

text:
    McKibbin, Appellant, v. Hulton Dyeing & Finishing Company.

      Corporation — Contract—President—Ratification—Lease.
    A contract in writing for the purchase of real estate made by the president of a corporation in the company’s name, without authority, and contrary to the by-laws, and without the knowledge of the directors or other officers, is invalid; and no ratification of the contract can be inferred from the fact that the company entered into possession of the real estate under a lease which had no connection with the contract, and paid rent therefor, although the lease was for a year, and the contract to purchase provided for a settlement in a year.
    Argued Jan. 7, 1910.
    Appeal, No. 321,
    Jan. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1906, No. 2,329, for defendant non obstante veredicto in case of David McKibbin v. Hulton Dyeing & Finishing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the purchase money of real estate. Before Moschzisker, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $6,900. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Charles H. Pile, with him William J. Geggis, for appellant.

      Charles L. Lockwood, for appellee.
   Per Curiam,

February 14, 1910:

This action was to recover the price of real estate which the president of the corporation defendant agreed in writing in its name to purchase from the plaintiff. It is undisputed that the president was without authority to bind the corporation by such a contract and was forbidden by the by-laws to do so, and that no action was taken by the board of directors in relation to it. There was no evidence that any of the directors or any of the officers of the company except the president had knowledge of it. By the terms of the contract one year was allowed for settlement, and the defendant went into possession under a lease for one year, collected rent from the subtenants and paid rent to the plaintiff. The collection and payment of these rents was relied on by the plaintiff as a ratification by the corporation of the contract of sale. The lease was not a part of the contract of sale. It was a separate and distinct contract in writing, complete in itself, and there was nothing on its face to show that it had any connection with the contract of sale. No ratification of it could be considered as a ratification of the unauthorized contract of sale, of which the directors had no knowledge.

The judgment is affirmed.


text:
    Freeman’s Estate
    (No. 1).

      Wills — Ufe estate — Intestacy—Widow’s rights.

    1. Where a testator gives to his wife all his real and personal estate “to take and use the same and the net income thereof during all the term of her natural life,” without any gift over, the widow’s personal representative after her death is entitled to take one-third of the husband’s entire personal estate absolutely. In such a case the widow has the right to accept and enjoy her life estate in the whole without giving up or renouncing her right under the intestate law to such of the property as was not disposed of by the will. The fact that she did not during her lifetime have one-third of the personal property set aside for herself absolutely, and that at the request of some of her children she had securities placed in her name as life tenant, will not justify a finding that the widow had so construed the will as to give her merely a fife estate.

      Decedents’ estates — Absence of party in interest — Death—Presumption —Finding of fact.

      2. Where a person leaves his home and place of residence for temporary purposes, ,and is not seen, heard of, or known to be living for the term of seven years thereafter, at the end of that time, he is presumed to be dead.
    3. Where the son of a decedent has been absent and unheard of for more than seven years after his father’s death, but there is evidence that he had been heard of within three or four years prior to his father’s death, a finding of the orphans’ court that the son survived the father will not be reversed. In such a case the son’s share of the personal estate of his father may be distributed directly to the personal representative of his mother.
    Argued Jan. 7, 1910.
    Appeal, No. 246,
    Jan. T., 1909, by Anna Dimond Freeman, from decree of O. C. Phila. Co., Jan. Term, 1907, No. 48, dismissing exceptions to adjudication in Estate of Charles D. Freeman, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisicer, JJ.
    Affirmed.
    Exceptions to adjudication.
    Anderson, J., the auditing judge, stated the facts to be as follows:
    Decedent died May 1, 1891, having first made and published his last will and testament, by which he bequeathed his estate to his wife for life (see Freeman’s Est., 16 Pa. Dist. Rep. 873), and appointed her executrix thereof, but made no provision as to what was to become of his estate after her death, and it therefore passes under the intestate laws, the widow having died June 26, 1906.
    Testator left surviving, his widow, S. Augusta Freeman, and five children: Isobel F. Frost, Marion F. Wills, Augusta F. Howes, Henry B. Freeman, who has since died, and Canfield Darwin Freeman. The question was raised at the audit as to whether his son Canfield Darwin Freeman survived him. Testimony of the daughters of the decedent was produced, showing that the son left the city about 1883, having been last heard of three or four years later. Against this testimony was produced a Supreme Court paper-book in the Estate of Henry G. Freeman (181 Pa. 405), which was a proceeding under the Price Act to authorize the trustee in the estate of Henry G. Freeman, father of the decedent, to execute a lease of certain real estate; which paper-book contained an affidavit by the widow and children of the present decedent (including those who now assert they knew nothing of the death of Canfield Darwin Freeman, and have heard of him three or four years after his departure), in which they stated that they were the only heirs of this decedent. The burden being upon the parties alleging the death of the son in the lifetime of the father, either to produce evidence of his death, or facts which show a presumption of death, and the evidence being that the son had been heard of in less than seven years prior to the death of the father, the auditing judge is unable to find either that the son was dead at the death of his father, or that a presumption had arisen to that effect. It will be necessary, therefore, to distribute the estate to the persons entitled under the intestate law; to wit, S. Augusta Freeman, widow (see Reed’s Est., 82 Pa. 428; Carmen’s Est., 11 W. N. C. 95; Grim’s App., 109 Pa. 391; Bell’s Est., 147 Pa. 389), the children now living and the estates of those deceased, including the son about whose death the controversy arose: Esterly’s App., 109 Pa. 222; Sherwood’s Est., 206 Pa. 465.
    On exceptions to the adjudication, Ashman, J., modified the conclusion of the auditing judge as to the distribution to the estate of the son last referred to in the adjudication as follows:
    “ Ordinarily the share of Darwin Freeman would be payable to an administrator of his estate. Under existing circumstances it will be distributed directly to those entitled as by way of intestacy. The distribution directed by the auditing judge is to this extent modified, and the share of Darwin is awarded to the estate of his mother, the widow of the testator, security being first required to protect the possible interest of the missing son or his legal representatives.
    “The exceptions are dismissed, and the adjudication as modified is confirmed.”

      Error assigned was in dismissing exceptions to adjudication.

      John I. Rogers, with, him J. B. Colaban 3d, for appellant.—
    Where all surviving members of a family declare under oath in a judicial proceeding as to the death, before a certain date, of a former member of the family, the court should not disregard such affirmative evidence and resort to the rule as to presumption of death after seven years’ unexplained absence: Hickman v. Upsall, L. R. 20 Eq. 136; Burr v. Sim, 4 Whart. 150; Bradley v. Bradley, 4 Whart. 173; Whiteside’s App., 23 Pa. 114; Holmes v. Johnson, 42 Pa. 159; Hershey v. Shenk, 58 Pa. 382; Esterly’s App., 109 Pa. 222; Welch’s App., 126 Pa. 297; Schoneman’s App., 174 Pa. 1; McCausland’s Est., 213 Pa. 189.
    Where an intestacy occurs after a gift of the entire estate for life to a widow, without any disposition of the remainder, the devisees of the widow are not entitled to one-third of the intestate’s estate in addition to the life interest in the entire estate in the absence of any lapse or void disposition of the remainder by the testator: Carmen’s Est., 11 W. N. C. 95; Grim’s App., 109 Pa. 391; Bell’s Est., 147 Pa. 389; Anderson’s Est., 185 Pa. 174; Greiner’s App., 103 Pa. 89; Osmond’s Est., 161 Pa. 543; Darlington v. Darlington, 160 Pa. 65; Wessel’s Est., 26 Pitts. L. J. 45; Devine’s Est., 199 Pa. 250; Van Dyke’s App., 60 Pa. 481; Young’s Est., 202 Pa. 431; Boileau’s Est., 201 Pa. 493; Goodbread’s Est., 9 Pa. Dist. Rep. 710; Freeman’s Est., 220 Pa. 343.

      Henry Budd, with him Walter C. Blakely and A. 8- L. Shields, for Marion F. Lukens, Isobel F. Frost and Augusta F. Howes, appellees.

      Robert D. Maxwell, for Henry Tatnall and J. Ernest Smith, executors of S. Augusta Freeman, appellees.
   Opinion by

Mr. Justice Moschzisker,

February 14, 1910:

The testator, Charles D. Freeman, died May 1, 1891, leaving a will wherein he provided as follows: “ I give and devise and bequeath all my real and personal estate to my wife to take and use the same and the net income thereof during all the term of her natural life and without giving security as life tenant thereof.” He left him surviving a widow, S. Augusta Freeman, and five children, Henry B. Freeman, Isobel F. Frost, Marion F. Wills (now Lukens), Augusta F. Richardson (now Howes), and Canfield Darwin Freeman. The widow enjoyed the income of the entire estate until her death on June 26, 1906. In 1905, the widow, at the request of her children, surrendered the certificates of the securities in her husband’s estate and obtained new ones in her own name as “life tenant.” Henry B. Freeman, one of the sons, died in the lifetime of his mother leaving a widow. In June, 1908, the personal representatives of the decedent filed their account showing a balance for distribution. This balance was awarded, one-third of the principal to the estate of the widow, and the remainder in equal shares to Isobel F. Frost, Marion F. Wills, Augusta F. Howes,'the estate of Henry B. Freeman, deceased, and to Canfield Darwin Freeman, “if living, and to his personal representatives if deceased.” Exceptions were filed, and it was contended that under the evidence produced it should have been found as a fact that Canfield Darwin Freeman predeceased his father; and that it should have been decided as a matter of law that the widow was restricted to a life interest, and her estate was not now entitled to share' in the distribution. The auditing judge found as a fact that Can-field Darwin Freeman left the city of Philadelphia about 1883, and had been last heard from three or four years later, stating: “The burden being upon the parties alleging the death of the son in the lifetime of the father either to produce evidence of his death, or facts which show a presumption of death, and the evidence being that the son had been heard of in less than seven years prior to the death of the father, the auditing judge is unable to find either that the son was dead at the death of his father, or that a presumption had arisen to that effect.” When the matter came before the court in banc the distribution was affirmed, excepting that the share of Canfield Darwin Freeman was awarded to the estate of his mother, the court stating: “Ordinarily the share of Darwin Freeman would be paid to an administrator of his estate. Under existing circumstances it will be distributed directly to those entitled as by way of intestacy. The distribution directed by the auditing judge is to this extent modified, and the share of Darwin awarded to the estate of his mother, the Avidow of the testator,' security being first required to protect the possible interest of the missing son or his legal representatives.”

While the learned judge who last spoke for the orphans’ court affirmed the distribution as awarded by the auditing judge, he arrived by a different path at the conclusion that Canfield Darwin Freeman, or his estate, Avas entitled to a distributive share, and in so doing he criticised the credibility of certain of the witnesses who had testified that this son had been last heard of within less than seven years prior to the death of his father; but he did not modify or set aside the findings of fact to that effect made by the auditing judge. Exceptions that “The learned court erred in finding that the son, Canfield Darwin Freeman, had left the city about 1883, having been last heard of three or four years later,” and, “The learned court erred in not finding that the son, Canfield Dar-Avin Freeman, was dead at the date of the death of the decedent, to wit, May 1st, 1891,” were dismissed, thereby affirming the findings of the auditing judge. These findings not having been changed by the court below, and an examination of the evidence failing to show any manifest error therein, we must take it as a fact that Canfield Darwin Freeman survived his father.

The rule is, Avhere a person leaves his home and place of residence for temporary purposes, and is not seen, heard of, or known to be living for the term of seven years thereafter, at the end of that time he is presumed to be dead: Burr v. Sim, 4 Whart. 150; Bradley v. Bradley, 4 Whart. 173; McCausland’s Est., 213 Pa. 189. The appellant contends that the learned judge beloAV fell into error by a misstatement of this rule. It is sufficient to say as to this, that it was but harmless error, as it did not change or affect the distribution under review.

On the question of the share awarded to the estate of the widow. The decedent disposed of his property for the life of his wife, Avithout any disposition over, thus leaving an intestacy after the life estate. The property vested by virtue of the intestate law subject to the life estate given by the will, one-third in the widow absolutely, and the remaining two-thirds in the children. The widow had the right to accept and enjoy her life interest in the whole without giving up or renouncing her right under the intestate law to such of the property as was not disposed of by the will: Reed’s Est., 82 Pa. 428; Carmen’s App., 2 Pennypacker, 332. Her right vested immediately upon the death of. her husband, and she could, if she so desired, have had set aside for her absolutely one-third of the personal property. The fact that she did not see fit to do so will not bar her personal representatives from insisting upon this right for the benefit of her estate. ' But, the appellants contend that the widow and the others in interest have been acting upon a different construction of this will, and they are now entitled to the protection of the rule, “where a will has two possible constructions and the parties have acted upon one, a court should not depart therefrom.” The only circumstances that give a semblance of justification to this contention are: first, the fact that the mother did not during her life formally set aside for her separate use one-third of the personal assets of the decedent’s estate; and, next, that at the request of some of her children she had the securities placed in her name as “life tenant.” These facts, when taken into consideration with their surroundings, do not justify a finding that a construction restricting the widow to her life estate had been put upon the will by the persons in interest. The evidence indicates that the mother’s actions in relation to these assets were forced upon her by the attitude of her children; and it' appears that she was told by her son Henry, who acted as her legal adviser, that she had no right to sell any of the assets. Although incidentally referred to, this matter was not passed upon in Freeman’s Estate, 220 Pa. 343; the question was not then before Us, and we did not decide the extent and the measure of the estate of the children, or that the widow did not share in that part of the decedent’s estate as to which he died intestate; the only point determined was that the widow did not have an absolute interest in the whole of the testator’s property.

In an opinion this day filed in another appeal in this estate, we decide that the personal representatives of the widow are entitled to certain accumulations of income which were awarded by the court below to the children, and for that reason the decree in its entirety cannot be affirmed. On the questions raised in the present appeal as to the right of the son Canfield Darwin Freeman or his estate, and as to the right of the estate of the widow to the awards made to them respectively, we find no reversible error. The assignments of error are overruled and to this extent the decree is affirmed.


text:
    Freeman’s Estate
    (No. 2).

      Wills — Life estate — Intestacy—Widow’s rights.

    Where a testator gives to his wife all his real and personal estate “to take and use the same and the net income thereof during all the term of her natural life,” without any gift over, the widow’s personal representative after her death is entitled to take one-third of the husband’s entire personal estate absolutely, and all of the accumulations of income from such one-third from the date of the death of the widow to the date of distribution.
    Argued Jan. 7, 1910.
    Appeal, No. 323,
    Jan. T., 1909, by Henry Tatnall and J. Ernest Smith, Executors of the Estate of S. Augusta Freeman, deceased, from decree of O. C. Phila. Co., Jan. T., 1907, No. 48, dismissing exceptions to adjudication in estate of Charles D. Freeman, deceased.
    Before Fell, C. J., Brown, Mestriozat, Potter, Elkin, Stewart and Moscuzisker, JJ.
    Reversed.
    Exceptions to adjudication.
    From the record it appeared that Charles D. Freeman died on May 1, 1891, leaving a will by which he gave to his wife, S. Augusta Freeman, all of his real and personal estate “to take and use the same and the net income thereof during all the term of her natural life,” without any gift over. The widow died on June 26, 1906. Administration d. b. n. c. t. a. was taken out on the estate of Charles D. Freeman after his widow’s death. The administratrices filed an account which was confirmed absolutely on January 16, 1909. Between the date of the death of the widow and the date of the audit, May 15, 1908, a large amount of income had accrued. The court distributed one-third of the principal to the executors of the widow, but awarded all of the income to the children of the decedent.
    Exceptions to the adjudication were dismissed by the court.

      Errors assigned were in dismissing exceptions to the adjudication.

      Robert D. Maxwell, for appellants.

      John I. Rogers, with him J. B. Colaban, Sd, for appellees.
   Opinion by

Mr. Justice Moschzisker,

February 14,1910:

The will of the decedent, Charles D. Freeman, and the facts in connection therewith, have been passed upon in another opinion this day filed in the appeal of Anna Dimond Freeman from the same decree which we are about to consider.

The orphans’ court decided that, subject to the life estate given to his widow, the testator died intestate as to all of his property, and the estate of the widow was entitled to an absolute award of one-third of the decedent’s entire personal estate. In making the decree of distribution one-third of the principal was awarded to the estate of the widow, but for some reason which does not appear in either of the opinions filed by the court below, none of the accumulations of income were awarded to her estate. Proper exceptions were filed in the court below calling attention to this fact; all of which were dismissed. The assignments of error are based upon these exceptions. They not only cover the abstract question of the right of the estate of the widow to receive the accumulations of income properly apportionable to the principal awarded to her personal representatives, but they also contain numerous concrete figures concerning different items of income in the account. It is not necessary that we shall pass upon the particular sums to which the estate of the widow is entitled. We decide that her estate is entitled to all of the accumulations of income properly apportionable to the principal awarded to her personal representatives. To this extent the assignments of error are sustained, and to this extent the decree is reversed; and the record is remitted to the court below in order that distribution may be made in accordance with the above opinion.