author: Howell, V. C.

text:
    The Rubber and Celluloid Harness Trimming Company v. The Rubber-Bound Brush Company et al.
    [Submitted January 4th, 1912.
    Decided July 10th, 1912.]
    1. In that class of cases of unfair competition denominated “passing-oil” cases, the general rule is that it is not nefcessary that the complainant in order to succeed should prove misrepresentation or actual fraud by the defendant, or give any evidence that any single person was deceived. It is enough if, in the opinion of the judge, the symbol or device or get-up used by the defendant is one which so closely resembles the symbol, device or get-up used by the complainant as to be likely to deceive the public. If so, then the conditions required by the rules of law are fulfilled, and the decision of the question is one which must be committed to the eye and the sound judgment of the judge to whom the ease is presented.
    2. "While the use of descriptive words cannot be defended upon the ground that they constitute a trade-mark, yet where a descriptive word has .been before the public so long and to such an extent as that it would be unjust for anyone to simulate it, and thus enable his goods to pass off as the goods of another, equity, which looks at the substance and not the mere form of things, will prevent the use of such words and give the complainant relief by way of injunction.

      3. Where it appeared that tike trade-names “Rubberset,” “Hard Rubber Set” and “Hard Rubber Set and Bound,” of the complainant, have come to signify in the trade the brushes manufactured and sold by complainant, and that the use of the trade-name or mark “Rubber-Vulc” by the said defendant, and the use of the word “Rubber-Bound” as a part of the defendant’s corporate title, are likely to confuse and deceive the public, and that their use would have the effect of permitting the defendant to derive advantage from the large expenditures made, by complainant for its advertising and receive benefit from its outlay of money, and that said words “Rubber-Bound” were selected as a part of the corporate title of said defendant company with intent to profit by complainant’s trade reputation, an injunction will be issued restraining the use by the defendant of the words “Rubber-Vulc” or “Rubber-Bound” as a trade or distinguishing mark of brushes manufactured or sold by it, and also restraining the use of the word “Rubber-Bound” as a part of its corporate name or title.
    4. International Silver Oo. v. Rogers Go., 66 N. J. Eq. (21 Dioh.) 11/0, followed with respect to complainant’s prayer for an accounting.
    On final hearing on hill, answer, replication and proofs.
    The bill in this case is filed to enjoin the defendants from the performance of acts which are alleged to lead to unfair competition in the business of manufacturing and selling brushes. The complainant began the manufacture of brushes in 1887, about which time it became the owner of two patents called the Read patents, for setting the knot of bristlés in soft rubber and then vulcanizing the rubber, thus forming a new article of manufacture, which it claims is of greater efficiency and durability than any brush theretofore made. In putting out this néw character of brush before the public the complainant used the words and phrases “Hard Rubberset,” “Rubberset,” “Hard Rubberset and Bound,” to distinguish this special variety of manufacture from any others which were' then or ever had been on the market. The words. “Rubberset and Bound” and “Rubber-Bound” have not been used recently so much as formerly, though I do not consider them as abandoned. For all practical purposes the controversy is reduced to two items, the first of whicii is whether the defendant the Rubber-Bound Brush- Company is wrongfully using a name or a mark to distinguish its goods, so nearly like the words used by the complainant as to be confusing and liable to deceive the public, and second, whether the defendant may continue to use (the phrase “'Rubber-Bound” in its corporate name.
    The Read patents expired in 1904, or thereabouts, since which time the complainant admits that the use of the processes described therein is open to the world.
    The defendant the Rubber-Bound Brush Company began the manufacture of brushes, the bristles of which were set in rubber and vulcanized, in 1908, and has continued such manufacture down to the present time. It marked its brushes at that time with the words “Rubber-Bound,” and continued to do so until the year 1909, when, upon the request of the complainant, it abandoned the use of that phrase and adopted instead thereof the word “Rubber-Vulc,” under which name it has marketed its goods ever since.
    On the first branch of the case the question is whether the word “Rubber-Vulc” is so close an imitation of the word “Rubberset” as that the public might be deceived or the unwary purchaser led to believe when he bought a brush marked “RubberVulc” he was buying a brush manufactured by the complainant. It appeared in the case that the complainant for a number of years spent many thousand of dollars annually in advertising its goods under the names which it had chosen to designate them by and in such manner as to reach the ultimate purchaser, that is to sajq the public generally; and that it had also adopted a peculiar “get-up” of its goods for purposes of display, tvhich it avers has likewise to some extent been imitated by the defendant. It likewise appeared by the testimony of some witnesses that the use of the word “Rubberset” had in the brush trade come to mean • goods manufactured by the complainant, and there was some evidence that the imitation of the complainant’s goods by the defendant was so close as to be likely to deceive purchasers; that in certain places retail dealers had exhibited brushes of both manufacturers side by side in show cases, and had used the complainant’s display racks for the indiscriminate exhibition of brushes of both makes, and that in at least two cases retail dealers had sold the product of the Rubber-Bound Company marked “RubberVnlc” as and for the goods of the complainant. The fact that the word “Rubberset” has come to mean the goods manufactured by the complainant was testified to by Mi*. Pushee and Mr. Erskine, witnesses produced on'behalf of the defendant, and by Mr. Seidler and by Mr. Neidlinger, witnesses on behalf of the complainant— and the fact that the retail dealers did not distinguish between the two lines of manufacture in making their sales is testified to by Mr. Wright and Mr. Holtzman, witnesses produced on the part of the complainant. It likewise appears in the case that the complainant has registered the word “Rubberset,” “Hard Rubberset,” “Hard Rubberset and Bound” in the United States patent office, and that it claims protection in the use of these words and phrases under its letters patent.

      Mr. Alfred F. Skinner and Mr. Charles C. Gill (of the New York bar), for the complainant.

      Mr. Elmer King, Mr. Charlton A. Reed and Mr. F. E. Tasker (of the New York bar), for the defendants.
   Howell, V. C.

In my opinion the primary and fundamental rules of law which govern the decision of this case are found in the case of Reddaway v. Banham & Company (1896), A. C. 199; 65 L. J. Q. B. 381, and in the opinion of the International Silver Co. v. William H. Rogers Corporation, 66 N. J. Eq. (21 Dick.) 119; affirmed, 67 N. J. Eq. (1 Robb.) 646. The Reddaway Case is the well-known case which related to the use of the words “camel hair” in connection with the manufacture and sale of belting for machinery. The phrase had been used by Reddaway in connection with Iris goods for many years. Banham, who was the leading spirit in the defendant corporation, had formerly been an. employe of Reddaway; he left his employment there and went into the manufacture of a similar belting which he called Arabian belting, but afterwards manufactured belting which was sold under the name of “camel hair” belting. It was held by the house of lords in a series of remarkable opinions that the evidence showed that the phrase “camel hair” had acquired a secondary meaning in the trade, and that when anyone spoke of came!hair belting he meant belting manufactured by the complainant; that the protection which the complainant might claim for the use of that particular name was not the protection which would be accorded to a trade-mark, for. tire reason that the words “camel hair” could not be appropriated as a trade-mark because they were purely descriptive words. Lord Herschell says: “The name of a person or words forming part- of the c-ommon stock of language may become so far associated with the goods of a particular maker that it is capable of proof that the use of them, by themselves, without explanation or qualification, by another manufacturer, would deceive a purchaser into the belief that he was getting the goods of A when' he was really getting the goods of B. In a case of this description mere proof by the plaintiff that the defendant was using a name, word or device which he had adopted to distinguish his goods would not entitle him to any relief; he could only obtain it by proving further that the defendant was using it under such circumstances or in such manner as to put off his goods as the goods of the plaintiff. If he could succeed in proving this, I think he would, on well-established principles, be entitled to an injunction.”

The same rule was applied by Judge Lurton in the case of Vacuum Oil Co. v. Climax Company, 120 Fed. Rep. 254, in the circuit court of appeals for the sixth circuit. He says: “That a descriptive word or sign or symbol descriptive from popular use in a descriptive sense may acquire a secondary significance denoting origin or ownership is true, but this secondary significance is not protected as a trade-mark, for a descriptive word is not the subject of a valid trade-mark, the only office of a trademark being to indicate origin or ownership. When a descriptive or • geographical word or symbol comes by adoption to have a secondary meaning denoting origin, its use in this secondary sense may be restrained if it amounts to unfair competition. In such case if the use of it by another be for the purpose of palming off the goods of one as and for the goods of another, a court of equity will interfere for the purpose of preventing such a fraud, but this kind of relief depends upon the facts of each case and does not at all come under the relief applicable to the infringement of a trade-mark.” La Republique Francaise v. Saratoga Vichy Co., 191 U. S. 457.

In my opinion, it is clearly proved in this case that the words used by the complainant, and particularly the word “Rubberset,” have come to mean goods manufactured by the complainant, and that if the complainant has established, as a matter of fact, that the defendant is using the same or a similar name to designate its goods, so that it may be said that the defendant is representing its goods as the goods of the complainant, then the complainant is entitled to the injunction prayed for.

I understand the general rule to be that in that class of cases, which is denominated “passing-off” cases, it is not necessary that the complainant in order to succeed should prove misrepresentation or actual fraud by the defendant, or give any evidence that any single, person was deceived. It is enough if in the opinion of the judge the symbol or device or get-up used by the defendant is one which so closely resembles the symbol, device or get-up used by the complainant as to be likely to deceive the public. If so, then the conditions required by the rules of law are fulfilled, and the decision of the question is one which must be committed to the eye and the sound judgment of the judge to whom the case is presented. This rule, and all the English cases on the point, will be found in a very recent case — Bourne v. Swan & Edgar (1903), reported in 1 Ch. 211; 72 L. J. Ch. 168 (1908). This English case is cited in order to call attention to its exhaustive argument and line of discriminating cases, but the rule in this state is the same, as will appear by an examination of Miller Tobacco Co. v. Commerce, 45 N. J. Law (16 Vr.) 18; International Silver Co. v. Rogers Corporation, supra, and Eureka Fire Hose Co. v. Eureka Manufacturing Co., 69 N. J. Eq. (3 Robb.) 159.

As a matter of fact, however, it sufficiently appears in this ease by the testimony of Mr. Wright and Mr. Holtzman that there was a great liability to deception. Besides, in my opinion, a careful examination of the exhibits demonstrate the proposition for which the complainant contends. • Taking into consideration'the marks and get-up of the goods, the similarity in appearance, the resemblance which the words have to each other, and the fact that the word “Rubber” is the principal and most obtrusive word used by- each, and the great probability of the indiscriminate display of the goods of the two manufacturers, I am led to the conclusion that the unwary purchaser ox the indiscriminating buyer would be as likely to get the goods of the defendant as the goods of the complainant, if he sought to buy a brush whose bristles were set in hard rubber. This probability is increased when we consider that in the defendant’s get-up and advertising display matter the name of the defendant corporation appears more or less conspicuously, having likewise for its most prominent feature a descriptive term which would tend to further confusion.

The foregoing eases, and the rules deduci'ble therefrom, demonstrate the proposition that while the use of descriptive words cannot be defended upon the ground that they constitute a trademark, yet that where a descriptive word has been before the public so long and to such an extent as that it would be unjust for anyone to simulate it, and thus enable his goods to pass off as the goods of another, equity, which looks at the substance and not the mere form of things, will prevent the use of such words and give the complainant relief by way of injunction. The rules are of rather easy application .in the ease in hand.' The complainant has spent immense sums of money in advertising its wares under the names above mentioned. This has had the effect of placing the complainant’s distinguishing words before the people of the United States and of informing them that the particular style-of brush advertised was manufactured by the complainant. To allow the defendant to simulate this brand, although it is not a trade-mark, would be to permit it to take advantage of the large expenditure made by the complainant for such advertising and thus get a benefit from its outlay of money, and to that extent nullify the benefit which the complainant designed for itself. In my judgment, it is very clear that the rubber-bound company has violated this equitable right of the complainant, and that it should be enjoined therefrom as prayed by the bill.

The remaining .question is whether the defendant the Rubber-Bound Brush Company should be permitted to continue the use of its present corporate name. I do not think that it should). The situation is very much like that in the case of the Interna tional Silver Co. v. William H. Rogers Corporation, supra. There the vice-chancellor declined to enjoin the use of the word “Bogers” in the defendant’s corporate title. On appeal from this portion of the decree (67 N. J. Eq. (1 Robb.) 616) there was a reversal upon the ground that the assumption of the word “Bogers” in the corporate title of the defendant company was a portion of the proceeding by which the public were to be deceived. The use of the words “Eubber-Bound” in the corporate title are quite as objectionable as their use upon the goods themselves, when we take into consideration the fact that the name of the defendant corporation appears in its advertising and display matter and on some of the boxes which contain the goods. The case is stronger than the Roger’s Case, for the reason that there Bogers was using his own name in the corporate title; here the name used is one which the defendant ceased using on its goods at the request of the complainant in 1909, and I can perceive no reason why the point should have been yielded as to the goods and insisted upon as to the corporate name.

The bill prays for an accounting of all profits which the defendant has made from the sale of brushes having thereon labels, marks or devices resembling the complainant’s, and all profits that the complainant would have made by the sales of its brushes if the imitation of the said marks had not been made. I am constrained to deny this prayer upon the ground and for the reasons stated by Vice-Chancellor Stevens in the Rogers Case. The report of his judgment on this point is found in 66 N. J. Eq. (21 Riele.) 110, and it was affirmed on appeal.

The defendants urge that the complainant is not entitled to bring this suit in its own name, that it should have been brought in the name of the Bubberset Company, a New York corporation organized by direction of complainant, under which name the complainant has advertised and sold certain of its wares. The allegations of fact on this point are without dispute, but I do not think that the use of the name of the New York corporation in a few instances would be sufficient either to bar relief on thfei merits to the complainant or to disqualify it as a party complainant. It clearly appears that the business connected with the manufacture of brushes belongs to the complainant, is conducted by it, that it receives all the money and pays all the bills, and that the New York corporation is a mere instrument of convenience for the transaction of the business by the complainant; on this branch of the case the decision must be for the complainant.

There is another objection made by the defendants, however, which has force, and must he decided in their favor. The complainant made the corporation of Hanlon & Goodman a party to the suit upon the supposition and allegation that Hanlon & Goodman was engaged in and interested in the manufacture of brushes with the other defendant the rubber-bound company. It is clearly proven that the only connection between the two companies or between the officers of the two companies is that of stockholder and director, and I therefore conclude that it is not a proper party to the suit, and that as to it the bill must he dismissed.


source: Caselaw Access Project

author: Lewis,, Y. C.

license: Public Domain

text:
    Walter M. Aikman et al., executors, &c., v. Sarah Armstrong et al.
    [Decided February 7th, 1913.]
    The testatrix devises and bequeaths an estate upward of one hundred and seventy thousand dollars, which came to her from both of her parents, concerning which she uses these words in the will: “And as my estate was derived from both of my parents, I deem it proper to devise the same among their respective relatives and to such societies as would best meet their wishes if living, and therefore, order and direct as follows.” After making' a number of specific and general bequests in the first seventeen paragraphs of the will, she uses the following words in the eighteenth paragraph: “The rest,, residue and remainder of my estate I order and direct my executors to divide into one hundred equal parts, or shares, and I give, devise and bequeath to my cousins [here the testatrix names eleven of her female cousins on her father’s side], their heirs, executors, administrators and assigns, forty-three and one-half part of said one hundred shares or parts, to be equally divided between them, share and share alike.” Then follow bequests to five additional classes of legatees of allotments of shares varying in number, but, with the forty-three and one-half above mentioned, disposing of the entire original division of one hundred shares. In the same paragraph and immediately following the classification of the residuary legatees, is this important proviso: “If any of said residuary legatees or devisees shall not survive me, his or her share shall go to the others of the class of distributees to which he or she may belong in the above distribution. And if all of the distributees of any of said classes shall die before me, the heirs of the last survivor of such .class shall take and receive the shares or parts which the survivor of such class would have taken if living.” The original will was made in the year 1888, and the testatrix iivod until the year 1909, during which time she made three codicils to her last will. In the first codicil, she substituted a male cousin on her father’s side for one of the legatees who had died, and in the second codicil she substituted another male cousin on her father’s side in the place of two of the legatees who had died, using the same habendum in each of these codicils. In all of these codicils the testatrix declares: “In all other respects I hereby ratify and confirm my last will.” Seven of these eleven original legatees, and one of the two who were substituted, predeceased the testatrix. — Held, that the five survivors take the whole of the fortjr-three and one-half shares.
    On final hearing on pleadings and proofs.

      Mr. Reginald Branch, for the complainants.

      Messrs. Gashill & Gashill, for the surviving residuary legatees named in the first clause of the eighteenth paragraph of the will.

      Mr. Enoch A. Highee (with whoin is associated Mr. David Murray, of the New York bar), for the defendants Charles Hathaway and others.

      Mr. Howard Eastwood, for the defendants Sarah Armstrong and others.
   Lewis,, Y. C.

Jane A. Aikman died on or about the 16th day of September, 1909, having first made, executed and published her last will and testament and codicils thereto.

In the introductory paragraph of the will the testatrix says:

“As my estate was derived from both of my parents, I deem it proper to divide the same among their respective relatives and to such societies as would best meet their wishes if living, and', therefore, order and direct as follows.”

The testatrix then proceeded to bequeath a large number of legacies to different charitable organizations and individuals, not including each and every relative of her father and mother.

The significant paragraph of the will in question is the eighteenth:

“The rest, residue and remainder of my-estate I order and direct my executors to divide into one hundred equal parts or shares, and I give, devise and bequeath to my cousins Mary S. Aikman, Catherine Cook, Sarah Dunnings, wife of James Warren Dunnings, Rebecca Aikman, Caroline Aikman, Julia Aikman, Abigal Marvine, Marion Ann Steward, Agnes Morris, Mary Hathaway and Emma J. Aikman, daughter of Robert S. Aikman, their heirs, executors, administrators and assigns, forty-three and one-half parts of said one hundred shares or parts to be equally divided between them share and share alike.
“Twenty-two other equal shares or parts thereof -1 give, devise and bequeath to ‘The American Baptist Publication Society,’ Philadelphia, The New Jersey Baptist State Convention and The American Baptist Home Mission Society, their successors and assigns, to be equally divided between them.
“Twelve and a half equal shares or parts thereof I give, devise and bequeath to the widow and children of my deceased cousin Aikman Welch, their heirs, executors, administrators and assigns, to be equally divided between them.
“Seven and one-third equal parts or shares thereof I give, devise and bequeath to my cousin James H. Canfield and Martha H. Canfield to be equally divided between them.
“Seven and one-third shares or parts thereof I give, devise and bequeath to the children of my deceased cousin Jeanette Platt, who shall survive me, to be divided ’ equally among them.
“Seven and one-third shares or parts thereof- I give, devise and bequeath to the daughters of my deceased cousin Anna H. Woolman, who shall survive me to be equally divided between them.
“If any of said residuary legatees or devisees shall not survive me his or her share shall go to the others of the class of distributees to which he or she may belong in the above distribution. And if all of the distributees of any of said classes shall die before me, the heirs of the last survivor of such class shall take and receive the shares or parts which the survivor of such class would have taken if living.”

The sole issue in this case is whether the heirs of those legatees mentioned in the eighteenth paragraph.of the will, which legatees predeceased the testatrix, shall take the share that the legatee would have taken if living at the time of the death of the testatrix.

The general rule is, that a legacy to A and his heirs is a legacy to A alone, the word “heir” being a word of limitation and not of substitution; that, in the case of a legacy to A “or his heirs,” the general rule is otherwise. But a special meaning of words may be accepted if such intention can be gathered from the whole will when construed with the aid of such extrinsic evidence as the law makes competent, and the word “and” may thus be construed in the sense of the word “or,” if such meaning is plainly indicated. See Zabriskie et al. v. William Huyler et al., 62 N. J. Eq. (17 Dick.) 697.

The question is raised, Why did the testatrix use the word “heirs” after the name of certain legatees in several instances and not use it in all, if some meaning was not to be given to these words; and why did she continue to do the same thing in several of her codicils ? And the court is asked to find the word “heirs” to be a word of substitution and not a word of limitation,'because the testatrix used it in some places and not in others.

In the present case, the original will was made in the year 1888, and the testatrix lived until the year 1909, a period of twenty-one years. She made three codicils to her last will.

In the first codicil, dated the 14th day of June, 1900, she stated that her cousin, Caroline Aikman, whom she had named among the first class of legatees under the eighteenth paragraph of her will, having since died, she desired to substitute her cousin, the Reverend William Aikman, as legatee in her place.

“I, therefore, now give, devise and bequeath unto the said Rev. William Aikman, his heirs, executors, administrators and assigns, such share or portion of my said residuary estate as the said Caroline Aikman would have received or taken if she had survived me.”

The testatrix also, in this first codicil, makes an alteration in another of the classes of legatees provided for under the eighteenth paragraph of her last will by adding to the members of that class, consisting of “the daughters of my deceased cousin, Anna H. Woodman, who shall survive me,” and their brother Howard Woodman.

The second codicil, dated the 22d day of June, 1906, also contains a clause affecting the eighteenth paragraph of the -will in question, stating that whereas two of the cousins named in the first class of said paragraph, to wit, Catherine Cook and Eebecca Añonan, had since died, she desired to substitute Walter M. Aikman

“as a residuary legatee in the- place and stead of each of my aforesaid two deceased cousins, therefore, I n.ow give, devise and bequeath unto my said cousin, Walter M. Aikman, his heirs, executors, administrators and assigns, such shares or portions of my residuary estate as the said Catherine Cook and Rebecca Aikman would have taken, received or been entitled to, if both of them had survived me.”

The third codicil, dated the 22d day of April, 1908, does not affect the paragraph under discussion. However, an important feature of all the codicils, including those making the above specific substitutions in the various classes under the eighteenth paragraph of the will is, that in each of the testatrix declares: “In all other respects I hereby ratify and confirm my last will,” while in the last one she also confirms the two prior codicils.

Of the cousins named under the first class in the eighteenth paragraph of the will, the following had departed this life previous to the death of the testatrix:

Mary Hathaway, Agnes Morris, Sarah A. Dunning and Abigail Marvine, for no onfe whom had the testatrix substituted a legatee. Besides these, Caroline Aikman predeceased the testatrix, and the Eev. William Aikman was substituted, as set forth in the first codicil; Catherine Cook and Eebecca .Añonan also predeceased the testatrix, and Walter M. Aikman was substituted for both of them in the second codicil.

The Eev. William Añonan, one of these two substitutes, died before the testatrix.

The executors of the testatrix having paid debts, converted the real estate into money, &e., as empowered under the various clauses of the will, now hold the sum of, approximately, $98,-656.62, representing the residue of this estate, and await the construction of the first clause of the eighteenth paragraph as to who shall participate in the distribution of this residue.

The question involved is, whether the children and heirs-at-law of the said William Aikman, Mary Hathaway, Agnes Morris, Sarah A. Dunning and Abigail Marvine, being those persons named in the first class of legatees who died before the testatrix, and for whom no one else was substituted, shall taire the part which would have been paid to their ancestors had they survived the testatrix; or, does this portion of the residue go to those of this class who survived the testatrix, namely, Mary E. Aikman, Marion Ann Stewart, Julia Ailanan, Emma J. Aikman and Walter M. Aikman, to the exclusion of the children and heirs-at-laws of the predeceased cousins ?

It is the duty of the court to so construe the will as to carry out the intention of the testatrix. It is likewise the established and universal law that the intention of the testator is to be gathered from the whole will and the will is to be construed in the light of ■ the circumstances surrounding the testator at the time of making it. The codicils are to be considered in arriving at the construction and regarded as a republication of her will as modified by the codicil. The ordinary and technical meaning of words may be disregarded, and special meaning accepted, if such intention of the testator can be gathered from the whole will.

“Or” will be construed “and,” in order to maintain the express general intent of the testator. This power of changing “or” into “and” is founded on j udicial • decisions that run back more than two hundred years. Brown v. Mugway, 15 N. J. Law (3 Gr.) 330.

Though a will must be construed as an entirety, yet the legal construction of one section cannot be controlled by guesses as to the intent of the testator arising from the disposition of his property in the remaining sections. See Gulick v. Gulick, 27 N. J. Eq. (12 C. E. Gr.) 498.

The first great leading rule from which courts of justice never depart is, to put such a construction on apparently conflicting parts that both of them, if possible; may stand, and the whole will be carried into effect. The rule of law is imperative that every clause in a will shall be made to operate.

Since the legatees in question are cousins of the testatrix, their heirs do not come within the operation of the thirty-fourth section of tlie Wills act (Gen. Stai. ¶. 8768), for the prevention of lapses, as that section only applies to a devise or bequest to a child or brother or sister, or any descendant of a child, or brother or sister of a testator.

ín searching for the intention of the testatrix throughout the whole .will, I find nothing to indicate that the testatrix, by the use of the ancient technical formula constituting the habendum clause, viz., their heirs, executors, administrators and assigns, meant anything other than the function which it has performed from time immemorial in all sorts of written transfers of property to define the title and tenure of the legatees.

The contention of the counsel for the next of kin of the legatees who predeceased the testatrix, that the proviso in the last part of paragraph 18 of the will, which provided for survivorship and substitution in the different classes of. distributees, refers only to the three legacies of seven and one-third shares each, has no force, as it applies to the eighteenth paragraph. I do not think the testatrix could have imagined that all the legatees and their next of kin could possibly have predeceased her. See Bonnell v. Bonnell, 47 N. J. Eq. (2 Dick.) 540, also Hendershot v. Shields, 42 N. J. Eq. (15 Stew.) 317.

In accordance with the law governing this case, the executors of Jane A. Aikman, deceased, will be directed to pay the forty-three and one-half shares of the residue of $98,656.62 now held by them awaiting distribution to the members of the class in controversy, who survived the testatrix, to wit, Mary A. Aikman, Marion Ann Stewart, Julia Aikman, Emma J. Aikman and Walter M. Aikman, and to the exclusion of the children of the deceased cousins, as provided for under clause 1 and the last two sentences of the eighteenth paragraph of the will, and the fifth and second paragraphs of the first and second codicils, respectively.

I will advise a decree accordingly.


author: Lewis, Y. C.

text:
    The Texas Company v. The United Paving Company and The Inhabitants of the City of Trenton.
    [Decided February 18th, 1913.]
    1. Under the act of March 30th, 1892 (P. L. 1899 pp. 810, 311 §§ J¡, 6, 1), providing that no lien for work in constructing a municipal improvement shall be binding unless an action is commenced within ninety days, that the lien claimant may enforce its claim by a civil action, and that the claimant must make all parties who- have filed claims parties defendant, the claimant is not required to bring- suit to establish his claim within ninety days, where he has been made a party to a similar suit by another claimant; consequently where a lien claimant intervenes In a suit by another claimant, within ninety days, there is a sufficient compliance with the statute.
    2. Where a contractor for public work assigned to his creditor all of the moneys due him, a materialman, who has filed a lien for the amount due him, may contest the validity of the assignment.
    3. Under the Municipal Lien law (3 Comp. Stat. 1910 p. 8315), a contractor for municipal improvements may assign in advance to a creditor all moneys to be derived under the contract, and defeat the claims of those who furnished the materials for the improvement.

      Mr. John II. Baches, for the complainant. •

      Messrs. Vroom, Dickinson & Scammell, for the Mechanics National Bank.

      Messrs. Bourgeois & Coulomb, for the United Paving Company.

      Mr. J. Albert Homan, for the Lamhertville Stone and Quarry . Company.
   Lewis, Y. C.

The bill in this case is filed by the complainant claiming that there is due it $6.935.16 under a certain contract made by it with the United Paving Company. It appears that on the 17th day of July, in the year 1911, the'inhabitants of the city of, Trenton entered into an agreement in writing with the United Paving Company, a corporation of this state, by the terms of which agreement the said United Paving Company was to furnish all materials and perform all labor in the construction of a certain texaco asphalt pavement on Second street, in the city of Trenton. The Texas Company, it is alleged, furnished certain of these materials to the United Paving Company for the paving of said street. The pleadings and proof show that the Texas Company, on October 17th, 1911, served a notice of the amount due it under its contract with the United Paving Company, upon the proper city officials of the city of Trenton, and filed its bill, giving the statutory notice. The proof shows further that the work was completed and finally accepted by the city on or about October 1st, 1911. Eor the municipality of Trenton it is admitted that it holds a balance of ’$11,769.13 on account of a contract entered into by it with the United Paving Company.

On April 11th, 1912, the Lambertville Stone and Quarry Company served its notice, but it was contended that it had not complied with the statutory requirement by giving notice of the pendency o f its suit within ninety days from the filing of its notice, and therefore could not be considered by the court. The opiniou is reached, however, that there has been a sufficient compliance with the requirement of the statute. The statute in question has been construed to afford an equitable and not a legal remedy. Delafield Construction Co. v. Sayre, 60 N. J. Law (31 Vr.) 449. At the time the Lambertville Stone and Quarry Company filed its notice of lien this cause was pending to enforce the complainant’s claim. On May 15th, 1912, and within ninety days of the time when the quarry company served its notice of lien, an order was made admitting the Lambertville Stone and Quarry Company as a party to it. It filed its answer to the complainant’s bill and the cross-bill of the Mechanics national Bank. Notice was served upon the city of Trenton of the intervention and of its purpose. The act of March 30th, 1892, public laws of 1892, page 370, paragraph 4, provides that no lien shall be binding unless an action is commenced within ninety days. Section 6 authorizes the claimant to enforce its claim by a civil action, and section 7 declares the claimant must make all parties who have filed claims a party defendant, and the court may decide as to the extent, justice and priority of the claims of all parties to the action. The claimant is hot required to bring suit to establish his iien within ninety days where he has been made a party to a similar suit by another claimant. National Fire Proofing Co. v. Daly, 76 N. J. Fq. (6 Buch.) 35.

It was suggested by the defendants that the Texas Company was without standing to attack the validity of the assignment of the United Paving Company to the Mechanics National Bank, on the ground that it was not a judgment creditor. The Texas Company is a lien holder under the statute and entitled to the fund for the payment of its debts subject to prior legal claims. If the claim of the bank is defeated, pajment to the Texas Company would be first in order. The Texas Company’s right to contest to accomplish this result is undoubted.

The principal controversy in the case is between the Texas Company and the Mechanics National Bank of Trenton. The latter is one of the defendants to this action. It sets up in its answer that at various times since August 1st, 1911, it has loaned the United Paving Company upon notes, approximately, $11,000, and that on August 6th, 1911,. the said paving company, as security for the payment of the said notes, assigned to it all interest in the balance of the money then due it under its contract with the city of Trenton.

The Texas Companj'- insisted that the assignment by the United Paving Company to the Mechanics National Bank was made without authority. Proof was, of course, required and offered to show that the paving company was in debt to the bank at the time of the assignment, and this fact was satisfactorily established.' The assignment made to the bank was a complete assignment of so much of the amount as was due from the paving company to the bank. There is unquestioned authority under the Municipal Lien law for a contractor for municipal improvements to assign in advance all moneys to be derived under the contract'and defeat the claims of the creditors of the contractor furnishing materials for the improvements. See Somers Brick Co. v. Souder, 71 N. J. Eq. (1 Buch.) 759; Garretson. v. Clark, 57 Atl. Rep. 414, and Cope v. Walton Company, 77 N. J. Eq. (7 Buch.) 512.

The evidence produced satisfied the court that the officers of the United Paving Company who made the assignment had full authority to do so. The proof disclosed a resolution authorizing the assignment, regularly passed by the board of directors of the paving company, and.at the time of the making and delivery of the assignment there was annexed to it a copy of the resolution in question; that in all the sum of $25,000 had been loaned by the Mechanics National Bank to the paving company on the security of the assignment, and that payments had been made upon this sum until it reached about $11,000; that due diligence had been exercised by the bank in the filing of the assignment.

A decree is allowed directing the city of Trenton to pay to the Mechanics National Bank the amount due under the assignment, and the balance, if any, remaining in its hands, to the Texas Company.


author: Lewis, V. C.

text:
    Ernest R. Ackerman et al., surviving trustees, &c., v. Caroline E. Ackerman et al.
    [Decided March 15th, 1913.]
    1. The bill is for the construction of the will of Warren Ackerman, and to' settle the accounts of the complainants, the surviving trustees. The will directed that the widow of the testator should have all his real property and certain tangible personal property for life. The testator then devised and bequeathed all the rest, residue, and remainder of his property to the trustees under the will in trust, to divide the same into eleven shares, one for each of his brothers, sisters, nephews, and nieces who survived him, and to pay the income from each share to the beneficiary for life, and on the death of the beneficiary, “to pay the principal of said shares so set apart for that brother, sister, nephew, or niece as lie or she may direct by his or her duly executed will and testament, and, in default of any such will to pay the same to the heirs or .next of kin of such brother, sister, nephew or niece, in accordance with the laws of the State of New Jersey in case of intestacy. The widow died June 16th, 1907. Theodore J. Ackerman, one of the eestuis que trustent, died January 8th, 1911. The fifth paragraph of Theodore’s will reads as follows : ■ “All the rest and residue of my property, of whatsoever the same may consist or wheresoever the same may be situated, I give to the New Haven Trust Company of New Haven, Connecticut, in trust, however, to pay over the income to my wife, Ellen D. Ackerman, and my daughter, Caroline E. Ackerman, during their lifetime, share and share alike, and upon the death of either of them the whole of the income is to be paid to the survivor.” Caroline survived her mother and now claims that her father, by his will, failed to execute the power, and that in default of such exercise she is entitled to the capital of the trust fund as heir and next of kin of her father. — Held, that Theodore did not, by his will, exercise the power of direction given him by the will of Warren Ackerman, and that Caroline is therefore entitled to one-eleventh of the trust fund'.
    2. Ezra P. Hoyt married- one of the beneficiaries under the will of Warren Ackerman and she left him her interest in the trust fund. Hoyt then married a sister of his deceased wife, who was also a beneficiary under the will, and she executed the power in his favor to the extent of nearly one-quarter of her interest in the trust fund. Hoyt died leaving a will, the nineteenth paragraph of which reads as' follows: “I give and bequeath to J. Ackerman Coles, so long as he shall live, the interest and income of all and singular the rest, residue, and remainder of my estate, real, personal or mixed, of every kind, nature and description, wheresoever situate, after paying from said interest and income the annuities hereinabove provided for, and the expenses of the administration of my estate.” J. Ackerman Coles is also appointed the executor of the will of Hoyt and the twenty-second paragraph directs that no security shall be required from any executor of the will in any state, the will being executed in New York. — Held, that J. Ackerman Coles is entitled to receive and take into his possession the proportions of such proceeds of sale directed to be paid to said Ezra P. Hoyt by the wills of Mary S. Hoyt .and Maria Ackerman Hoyt, and that there must first be granted to him ancillary letters testamentary in this state.
    On final bearing on bill., answer and proofs.

      Messrs. McDermott & Enright, for the complainants.

      Mr. George Holmes, Mr. George R. Beach, Mr. Thomas Mills Day, Messrs. McOarler <& English, and Messrs. Nelson & William N. Runyon, for the defendants.
   Lewis, V. C.

The bill is filed by the complainants for the construction of the will of Warren Ackerman, and a settlement of their accounts as trustees under that will.

Warren Ackerman died a resident of Scotch Plains, Union count]', New Jersey,'on August 26th, 1893. The significant sections of his will read as follows:

“First. I give and devise to my beloved wife, Lydia Platt Ackerman, for and during her natural life, all the real estate, wheresoever situated, and of which I may died seized, possessed ’of, or entitled to. I also give and bequeath to my said beloved wife, for and during her life, all my household articles, furniture, fixtures, portraits, works of art, books, plate, silver and table furniture, wherever the same may be situated. The foregoing devise and bequest to my said beloved wife is made' on the condition that it be accepted by her in lieu of all dower and thirds in my estate.
“Sixth. I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal of which I may die seized, possessed of or entitled to, and wherever the same may be situated to my beloved wife Lydia P. Ackerman, my brother Theodore J. Ackerman and my nephews Ernest R. Ackerman, Marian S. Ackerman and Jonathan A. Coles as trustees upon the following trusts and for the following purposes, that is to say: in trust to divide the same into as many shares as I may have brothers and sisters, nephews and nieces who shall survive me or who dying during my lifetime shall leave issue who shall survive me and to set apart for each of such of my brothers and sisters and nephews and nieces as shall survive me one of said shares and to pay the income derived from such share to him or her .during his-or her natural life ’ as the case may be and on the death of my brother and each one of my nephews and nieces who may survive me to pay the principal of said shares so set apart for that brother, sister, nephew or niece as he or she may direct by his or her duly executed will and testament and in default of any such will to pay the same to the heirs or next of kin of such brother, sister, nephew or niece, in accordance with the laws of the State of New Jersey in case of intestacy.
“Eighth. For the purpose of carrying out the trusts herein created and for managing the trust property I give to my trustees hereinbefore named, and to such of them as_ shall act as such trustees, and the survivors or survivor of them and their successor in said trust, full power and authority to sell and convey any part of the whole of said trust property at public or private sale to execute acknowledge and deliver good valid and sufficient deeds and instruments for conveying and vesting the title of the same in the purchasers thereof and to re-invest the proceeds derived from such sale or sales in such other securities as the law of the State of New Jersey shall make it lawful for trustees to invest trust funds in.”

The widow died June 16th, 1907. Four of the eleven trusts have terminated- through the decease of the life benéficiaries, among them the trust created for Theodore J. Ackerman, who died January 18th, 1911, a resident of New Haven, Connecticut, who, by his will, made certain bequests and devises, and then provided as follows:

“Fifth. All the rest and residue of my property, of whatsoever the same may consist, or wheresoever the same may he situated, I give to the New Haven Trust Company of New Haven, Connecticut, in trust, however, to pay over the income to my.wife, Ellen D. Ackerman, and my daughter, Caroline E. Ackerman, during their lifetime, share and share alike, and upon the death of either of them, the whole of the income is to be paid to the survivor!
“Seventh. All the rest and residue of my estate, upon the termination of said trust, I desire to have distributed pursuant to the statute laws of the State of Connecticut to my next of kin, with the exception of my niece, Lydia P. Murphy, of Plainfield, New Jersey, to whom I give the sum of one dollar only.”

The defendant, the Union and New Haven Trust Company, is the same company which is named in Theodore’s will as the “New Haven Trust Company,” and is the executor and trustee under Theodore’s will.

Theodore’s wife died intestate, August 23d, 1911, and their daughter, Caroline E. Ackerman, was appointed administratrix of her estate. The Union and New Haven Trust Company has filed its answer, together with matters in the nature of a cross-bill, exhibited against the complainants and the defendant, Caroline E. Ackerman, and Caroline E. Ackerman as administratrix of her mother’s estate. Answers to the bill and cross-bill have been filed by the defendants, and issue has been duly joined.

The first question that will be dealt with is, to whom the capital of that share of Warren Ackerman’s estate that was held in trust for his brother, Theodore J. Ackerman, shall now be paid, as well as any future moneys that may arise from sales or property that form part of such share.

Caroline asserts that this fund must be paid to her, as she, under Warren Ackerman’s will, is absolutely entitled to it as the only heir and next of kin of Theodore J. Ackerman, her father, as he did not exercise the power of direction given him by Warren Ackerman’s will.

The Union and New Haven Trust Company, executor of Theodore’s will, on the contrary, claims that Theodore did exercise the power and appointed it by his will to receive it, in trust, for the life of Caroline and her mother, and on the death of Caroline and her mother, to distribute the same amongst the next of kin of Theodore J. Ackerman, pursuant to the seventh paragraph of his will.

There is no doubt that Theodore J. Ackerman had, in his own right, more than sufficient real and personal property to fulfill all the provisions of his will.

In every part of his will he speaks of the property he devises as “my property.”

There is nothing in his will, in order to fulfill it, that would require a resort to the trust fund in question.

It makes no reference whatever to Warren’s will, or the power, ■ nor to any estate or property that was Warren’s.

The English rule, prior to the adoption of the statute on the subject, appears to have been, in brief, that the intention to execute a power of appointment by will must appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would be inoperative without the aid of the power. This rule was abolished in England in 1837 by the statute of wills, and under that statute the law now is, in England, that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will. By statute this is also the law of the State of New York.

Under the New Jersey decisions, it is quite clear that Theodore J. Ackerman cannot be adjudged to have executed the power under his brother Warren’s will, for the reason that there is no evidence whatever of his intention to do so, either by a reference-in the will to the power, or to the subject of it, or from the fact that the will would be inoperative without the aid of the power, nor is there anything in the will from which an intention to execute the power can be gathered. It is true that-Theodore placed his own individual property in the hands of a trustee for the benefit of his wife and daughter, and a guess might be hazarded from that fact, that he did not intend to allow his daughter, Caroline, to come into full and immediate possession of the share of the trust fund under Warren Ackerman’s will, and if this were h case of first impression I should so hold. See Wooster v. Cooper, 59 N. J. Eq. (14 Dick.) 204; Meeker v. Breintnall, 38 N. J. Eq. (11 Stew.) 345; Munson v. Berdan, 35 N. J. Eq. (8 Stew.) 377; Den v. Crawford, 8 N. J. Law (3 Halst.) 109; Lippincott v. Stokes, 6 N. J. Eq. (2 Halst.) 151; Cueman v. Broadnax, 37 N. J. Law (8 Vr.) 508; Lee v. Simpson, 134 U- S. 589.

The next question to be decided is whether there was an equitable conversion of the realty. '

“If the spirit of the whole direction of a will clearly-exhibits that the testator intended that his real estate should, in all events, be converted into money, then, notwithstanding discretion may have been given to his children as to the time when the sale would take place, the real estate must be considered as converted into money from the testator’s death.” Crane v. Bolles, 49 N. J. Eq. (4 Dick.) 373.

Warren Ackerman left a large amount of real property in the State of New York as well as in the State of New Jersey.

I think that there was an equitable conversion of all the realty of which Warren Ackerman died seized,'and that... as Theodore J. Ackerman did not execute the power, the trustees should be advised and directed to pay to Caroline E.’ Ackerman the principal of the trust share which was or should have been set apart for her father, and any accumulated, income thereon since his death, as well as one-eleventh o£ all moneys which may be realized in the future from unsold property, and one-eleventh of the net rents and profits thereof from her father’s death, as well as any moneys or property, if any, that ought to have been held by them for the benefit of her father, and income accrued^ after his death. The next question concerns the construction of the will of Ezra P. Hoyt, the nineteenth paragraph of which will reads as follows:

"I give and bequeath to J. Ackerman Coles, so long as he shall live, the interest and income of all and singular the rest, residue and remainder of my estate, real, personal or mixed, of every kind, nature and description, wheresoever situate, after paying from said interest and income the annuities hereinabove provided for, and the expenses of the administration of my estate.”

The J. Ackerman Coles mentioned is appointed executor of the will.

Ezra P. Hoyt married Mary S. Hoyt, a sister of Warren Ackerman, and one of the eleven cestuis que trusteni under the will of Warren Ackerman, and by her last will and testament she left everything to her husband, except some bequests which have been paid, including all her right, title and interest in the estate of Warren Ackerman, and appointed Ezra P. Ployt the executor.

That after the death of Mary S. Hoyt, her sister Maria intermarried with the same Ezra P. Hoyt, Maria also being one of the cestuis que trusteni under the will of Warren Ackerman. By her last will and testament, Maria left to her husband, Ezra P. Hoyt, a one-fourth share of-the property held in trust for her under the provisions of the said will of Warren Ackerman, less certain legacies, or a certain proportion of said legacies.

The question is whether the trustees under the will of Warren Ackerman shall pay over to J. Ackerman Coles, individually, as being the person entitled to the interest and income of tire same for his life under the nineteenth paragraph of Ezra P. Hoyt’s will, or should be paid over to him as executor, or whether the same should be retained by the trustees during the lifetime of said J. Ackerman Coles, and the income thence arising paid to said J. Ackerman Coles during his lifetime, and upon his death pay the same to the person or corporations entitled, or to become entitled, to the same under the provisions of the said last will and testament of Ezra P. Hoyt.

My view is that J. Ackerman Coles is'entitled to receive and take into his possession the proportions of such proceeds of sale directed to be paid to said Ezra P. Hoyt by the wills of Mary S. Ho3d and Maria Ackerman Hoyt, as the executor of the will of Ezra P. Ployt, and not individually, and that there must first be granted to him ancillary letters testamentary in this state..

Permission to account in this court was allowed at the hearing.


author: Lewis, Y. O.

text:
    Irma Leigh Earl v. Binney Woodward Earl.
    [Decided April 19th, 1913.]
    1. Upon the hearing oí a wife’s petition for an absolute divorce from ner husband on the ground of adultery, and his cross-petition for like relief against her on the same ground, it appeared that both parties had gonorrhea, and the question was which of them had it first and communicated it to the other. — Held, that evidence of antenuptial incontinence of the husband is not admissible to support-the charge of adultery in the petition.
    2. The fact that the petitioner remained with the defendant for some months after the discovery of the disease which, it is alleged, he communicated to her — Held, after a review of the evidence on this branch of the case, that her remaining there is not held to have worked such a condonation that would preclude her from securing a divorce under her petition.
    3. The defendant’s confessions are to be taken with extreme caution, and, without corroborating circumstances, might not be deemed sufficient to sustain the petitioner’s case.
    4. Upon a review of the whole case — Held, that there is no testimony to sustain the husband’s cross-petition, and that the petitioner is entitled to a divorce, and in her behalf a decree nisi is directed.
    5. Conversations had with a co-respondent in a divorce suit, in which he made certain statements relative to petitioner, are not admissible in the main issue, though they may he used to impeach co-respondent as a witness.

      Mr. John H. Baches, for the petitioner.

      Mr. Joseph JI. Gaskill and Mr. Reginald Branch, for the defendant and cross-petitioner. •
   Lewis, Y. O.

This action is for divorce on the grounds of adultery. The petition of Irma Leigh Earl is for an absolute divorce. The petitioner charges ’the defendant, Binney Woodward Earl, with communicating to her the secret disease of gonorrhea. The initial appearance of the defendant in this court was by answer denying the charges alleged in the petition. On April 30th, 1912, the defendant moved for and obtained leave to file a cross-petition, charging the petitioner with adultery, and naming Mark Whitfield, á servant in the household of the petitioner and defendant, as co-respondent.

It is shown by the evidence that both the petitioner and defendant had gonorrhea, and the question of course is, Which one had it first and communicated it to the other? The .petitioner insists that the defendant communicated the disease to her, and, on the other hand, the defendant claims that the disease was given to him' by his wife.

At the hearing of the case, testimony was admitted concerning the conduct of the defendant prior to his marriage. It was insisted by the petitioner’s counsel that this testimony was admissible under the circumstances of the case, as. showing the disposition of the defendant, and the court must confess to considerable sympathy with this view, when a divorce is sought for adultery, the charge being based upon the communication of a secret disease. There is no question, however, that under the authorities in New Jersey it must be excluded. Evidence of ante-nuptial incontinence is not admissible to support the charge of adultery in a bill for divorce. Hedden v. Hedden, 21 N. J. Eq. (6 C. E. Gr.) 61.

In a preliminary way it may be said that this marriage was that of a young girl of good family, in moderate circumstances, to a young man in affluent position. At the time of the marriage the defendant was twenty-two years of age, and the petitioner nineteen. It was a runaway match, and, as appears by the testimony, was objected to by the parents of the petitioner. The parties lived together until October, 1911, when the petitioner returned to the home of her mother.

Great stress is laid upon the fact that the petitioner remained with the defendant for some months after the discovery of the disease, which, it is alleged, he communicated to her; but it is shown by the testimony of the defendant that there was no cohabitation during this period, that the petitioner was not aware of the character of the disease or its source; that she had been persuaded by the mother of the defendant and informed by the defendant himself that the disease had been contracted from a toilet. In treating of this phase of the case, it should be remembered that the petitioner, up to the time of her discovery of the ■ secret disease, had lived in comfort and happiness with the defendant. The testimony shows that the attitude of the mother-in-law and of the husband, the defendant, from the time of the discovery, was extremely kind and considerate to her; that the petitioner had no means of support except that jn’ovided by her-husband and his family and was dependent upon them. There is nothing developed in the testimony that proves to the satisfaction of the court that she was anything but an innocent- young-woman. Yo adulterous act on her part has been proven, and no evil associations have been shown. It was not unreasonable, under all these circumstances, for her to remain some time in the home of the defendant, even after the revelation of the secret disease, and her remaining there is not held to have worked such a condonation that would preclude her from securing a divorce under the petition filed.

The petitioner’s case, in some measure, is dependent upon admissions made by the defendant to the petitioner’s mother, Mary M. Leigh, and to her brothers, Dr. Chester Leigh and John Clinton Leigh. Aside from this, however, is the very important testimony of Dr. George D. Tracey, who attended both the petitioner and defendant. This is the only evidence offered by either petitioner or defendant from an outside source, i. <?., outside of the family, dealing with the time at which the petitioner and defendant were inoculated with the secret disease. This evidence seems to clearly establish the fact that Binney Woodward Earl first had this secret disease. Dr. Tracey first treated the defendant on July 5th, 1911. In the latter part of June or early part of July, 1911, the defendant first complained of a'burning sensation when urinating. The first treatment given the defendant by Dr. Tracey was at the defendant’s house, and for the first few days thereafter, he continued treating the defendant at the defendant’s house. Later, the defendant went to the doctor’s office for attention. The doctor went on his vacation on July 9th that year. He remained away about two weeks or more, and upon his return, he treated Mrs. Earl. His testimony is, that he treated her after July 30th. While, upon cross-examination, Dr. Tracey stated that he might conclude from his examination of Mrs. Earl that she had been suffering from the disease for a period of eight weeks or more, yet, on redirect examination, he said that he was sure that her condition was not chronic, and that he could not tell whether it was of two weeks or four weeks or eight weeks standing.

Mary M. Leigh, the petitioner’s mother, said that she had a conversation with the defendant in which she asked him why he tried to give Dr. Tracey the impression that he had contracted the disease from his wife, to which he replied that Irma did not give it to him; that he did not want Dr. Tracey or his mother to think so; that he knew he had given it to his wife. To Mrs. Leigh the defendant also said that his mother wanted him to say that he had contracted this disease from his wife, but he refused to say so because he knew that he had inoculated her. To the petitioner’s brother John Clinton Leigh the defendant also said that his mother wanted him to say that he got the disease from his wife, but that this was not true; that he did not get it from her; that the fact was that he might have got it from! a toilet. The defendant also had a conversation with Dr. Chester Leigh, another brother of the petitioner, two or three days after the visit by the petitioner to the specialist, Krusen, July 31st. To him the defendant said: “Chester, I have the gonorrhea. I know 1 gave it to your sister, hut I do not know how I got it. Dr. Tracey told me that I might have gotten it from a toilet, but when he told me that, he laughed.” It is shown throughout the testimony that the defendant frequently admitted to his wife, in the presence of her mother, that he had contracted the disease and communicated it to the petitioner.

A denial of these admissions, is made by the defendant, and it is strongly urged by his counsel that the admissions of the defendant to the members of the family of the petitioner axe not sufficient in law to sustain a decree. There is no doubt that the confessions of the defendant are to be taken with extreme caution, and, without corroborating circumstances, might not be deemed sufficient to sustain petitioner’s case. The cases of Clutch v. Clutch, 1 N. J. Eq. (Saxt.) 474; Miller v. Miller, 2 N. J. Eq. (1 Gr. Ch.) 139, and Perkins v. Perkins, 59 N. J. Eq. (14 Dick.) 515, are cited in support of this contention, but they are easily differentiated from this action. The evidence in the eases mentioned was, that the alleged offenders had made statements of wrong-doing. In Clutch v. Clutch the only direct evidence offered to sustain the charge of adultery was that of one witness who testifies that while the defendant lived in the home of his father-in-law he stated that he had the. venereal disease. There was no strong corroborative circumstances shown in the cases referred to which would justify a decree. The case in hand differs materially from these. Here, the defendant, who suffered from a venereal disease, in his conversations with the members of the petitioner’s family, declared that he had communicated the disease to her. The admission is established in this case, and the corroboration suggested by the cited eases furnished.

Citing the ease of Miller v. Miller, 20 N. J. Eq. (5 C. E. Gr.) 216, defendant’s counsel urges that the testimony of the mother and of the two brothers of the petitioner is of doubtful value, on the grounds that they had concealed the fact that the defendant made admissions to them. The facts were not kept from either the petitioner or the defendant, certainly not from the defendant, who made the admissions, and not from the petitioner, to whom the matter was made known, not only by the defendant but by the witnesses. The subject was generally discussed by the members of the petitioner’s family and the petitioner.

The cross-petition charges, the petitioner with infidelity with one Mark Whitfield, a servant in the household.- Under the cross-petition, evidence was introduced to show undue familiarity on the part of the wife with one G., who is not named as a corespondent in the cross-petition. G. was a visitor at the house, and it was clear that he had been a friend of the petitioner formally 3rears, and that his invitation to visit the defendant’s house was by and at the request of the defendant;

The defendant stated that his wife said to him, while G. was on his visit at their home, that she would like to kiss G., that she loved him. There was also a charge that she massaged his neck. The petitioner testified that G. remained at the house of the defendant but one night, Saturday, and that he left before dinner the next day. She denies that she stated to her husband that she would like to lriss G., or that she loved him, or that she had massaged his neck. She says that G. had a sore neck and that she offered to fix some antiphlogistine for him to place upon it while he was at her house, but he declined. She denies that G. asked her to elope with him, or that her husband in any way reprimanded her for her conduct with him. For the purpose of strengthening the charge of familiarity with G., the defendant alleges that he took from the desk of the petitioner, after she had left his home, several letters from G. to her, containing exprese sions of endearment. He fails, however, to produce any. of these letters, and says that he does not remember why he did not keep them. The petitioner denies any letters from &., save one thanking her for the hospitality he had enjoyed at the house, which letter she says she showed to her husband. There is not a scintilla of evidence which would form the basis of a charge of adultery with G., and, upon the testimony, I would exonerate the petitioner from the charge of any misconduct with him.

The co-respondent named in the cross-petition, Mark Whitfield, had been in the employ of the Earls almost since their marriage, and continued to be so employed until their separation in October, 1911, when he left of his own accord. The defendant says that one night, which he thinks was in the spring of 1911, upon returning home from Burlington with his chauffeur, Wright, he could not get into the-house. He knocked on the side door and rang the front bell, a light was lighted inside the house, and through a small window in the front door, he and the chauffeur saw Whitfield coming downstairs. AYhitfield had on an outing shirt and a pair of trousers and rubber-soled canvas shoes. The defendant says that after the door was opened by Whitfield, he went upstairs to his wife; that she had her hair down and was clothed only in a kimono, undershirt and pair of slippers; that he asked her what she had Whitfield upstairs for, and she replied, “Don’t be unreasonable. I had him here because I was afraid to stay alone.” On cross-examination he says that he and Wright did not get home until one o’clock, because the machine broke down. They knocked at the side door first, and, upon getting no response, they went to the front door and rang the bell. When he first saw Whitfield through the glass opening in the door, he looked at one end of the side of the door leading from his wife’s room. Whitfield took his time coming downstairs to let them in. He came directly from the place where the wife’s room was. Defendant saj’s he does not remember saying anything to Whitfield ■about his being upstairs, nor docs lie recall, upon .entering the house, going to the dining-room and being there with the chauffeur and Whitfield, as Wriglit says they were. He swears positively that Whitfield came out of Ms wife’s room and that he saw him coming out of her room. He saj’s he did not ask Whitfield what he Avas doing in his Avife’s room, because he had absolute faith in his wife. He says he reprimanded his wife^ but he did not go doAvnstairs to chastise Whitfield, as he was not physically able. The testimony of the chaufiieur, Wright, is that the defendant rang the front door bell, and that after awhile, Whitfield came from upstairs and opened the door and that they both went in. He saA's that Avhen Whitfield started downstairs he could see him coming along, SAvinging around the corner of the door AAdiieh led to Mrs. Earl’s room. Mrs. Earl said, “Is that you, Binney?” and he said, “Yes.” She said, “Where have you been?” He said, “I broke down and left the car at my mother’s.” She said, “I had to haAre Mark up here to keep me company, for I was afraid.” On his cross-examination he says they walked to the Earl home from the trolley line of Edgewater Park and that they crossed the lawn to the side porch and walked around to the porch on the front; that the defendant knocked on the door loud enough for anyone to hear. He stopped at the side door before knocking about a minute, long enough for someone to come down and let them in, and that he rang the door bell, and in about a minute Mark came downstairs. The witness continues:

“I went on into the house. Binney and I stood close together. We were right close together, so that we both saw Mark come downstairs at the same time, through the opening in the door. Binney did not say anything to Mark, nor Mark to Binney. Mark closed the door. 1 went out into the kitchen. We went to the dining-room and then into the kitchen. I don’t know whether Mark went out too. I went to the kitchen because Binney asked me to. I went there and stayed there a little while, and then I went back. We were talking about the car with Mark Whitfield. I stayed in the kitchen about ten or fifteen minutes. Mr. Earl was there all the time with Mark. Mark let me out of the house that night.”

The petitioner and Mark Whitfield deny that he was in the bedroom on, the evening in question. The testimony of the architect who planned the house in which the Earls lived, proved, conclusively, that it would be impossible to stand at the front door of the house, peering through the glass door, and see a person coming out of the petitioner’s room. This witness says that standing at the front door it would be impossible to see a door leading to any of the bedrooms in the house.

Wright, the chauffeur, testifies that he saw Whitfield wash napkins and towels, and that one day he spread out a suit of underwear that he thought was of female type. At the same time he saw some bloody water in the sink. This evidence is of small ‘ and doubtful value. Instances of Whitfield’s presence in various bedrooms and bathrooms of the house are numerously related. The testimony clearly shows that Whitfield did general work in the house, cleaning rooms and making beds, besides performing his duty as cook. The chauffeur also testified that on one occasion, in the morning, about seven o’clock, he brought mail to the house; that it was a week before the separation; that the bell rang; that Whitfield did not respond promptly and that then Mrs. Earl called for him and the witness says that he recognized her voice; that it sounded as if it came from a front room of the house, hut he could not say whether it was upstairs or down. The voice said, “Mark!” That Whitfield went into the dining-room in his pajamas. Wright says that Whitfield had an “erection on,” and that the remark was made by him, “Here’s where I get it off.” That he returned in about fifteen minutes and there was no evidence of the erection. Wright, upon cross-examination, would not swear that he was positive that it was Mrs. Earl’s voice that he heard calling.' If this incident ever occurred, it does not require much stretch of the imagination to conclude that, if the voice was that of Mrs. Earl calling to Whitfield, what he meant by the expression, “Here’s where I get it off,” was that he was going to change his clothing before he put in an appearance before his mistress. The happenings upon the return home from Brudington, and the one just referred to, are the main ones suggested by the testimony under the cross-petition for asking a decree against the petitioner. It is true that the mother of the defendant testified that on or about the 10th day of June, 1912, the petitioner told her that she had great pain in urinating. Mrs. Earl, senior, remembers this date; she says, to quote her own statement, “Because that was a very happy day for me. I was building my house and I made my first payment on it that day.” There are no receipts or other corroborative documents offered to show anything about this payment, nor is it said that the petitioner went into any detailed description of her sickness with the mother of the defendant. It appears also from the testimony that about, this time Dr. Ephraim R. Mulford was treating the petitioner for hemorrhoids. On tire 13th day of June of that year, Dr. Mulford made a physical, digital examination of the petitioner for this complaint, and he treated her for several days thereafter. Dr. Mulford, it is true, did not then examine the vulva. He said that the presence of hemorrhoids would account for the irritation of her bladder. If the testimony of the mother of the defendant is to be believed, as to this conversation with her daughter-in-law, the evidence of this physician may throw light upon petitioner’s statement.

The testimony of one McCrea is offered to show that in Eebruáry, 1911, Whitfield, the co-respondent, asked him if he knew where he could get some clap medicine. The testimony of this witness, on this point, and of Wright as to conversations with Whitfield concerning his conduct towards Mrs. Earl, were admitted, although it was urged by the petitioner that they were not admissible. The defendant offered them as impeaching the testimony of the co-respondent and as contradictory to his statements. The weight of authority is that such statements may be admitted, but not as bearing on the main charge and not as affirmative testimony against the petitioner. See Graham v. Graham, 50 N. J. Eq. (5 Dick.) 701; Berckman v. Berckman, 16 N. J. Eq. (1. C. E. Gr.) 122. The object of McCrea’s evidence is obvious, but it might be just as reasonably inferred that Whitfield, who was the servant of Earl, was purchasing or inquiring about the purchase of medicine for his employer.

Upon a review of the whole case, there is nothing offered which satisfies the court that the petitioner has been guilty of infidelity with Whitfield. If, for no other reason, I should not be inclined to place much faith in the testimony of the defendant as to alleged misconduct of his wife with Whitfield, on the ground that the latter was permitted by the defendant, who paid his wages, to remain in h'is employ at his home for months after the night that he alleges he came home and found him emerging from his wife’s bedroom. To say the least, it was a most extraordinary course to pursue, for this defendant to retain in his service a man believed to have been guilty of criminal conduct with his wife. It is contrary to human nature.

It does not appear, from the- testimony, that the petitioner was away from home at night without her husband or without his knowing exactly where she was, nor does it appear from the testimony that she was at home alone with Whitfield at night. The defendant himself says that he always took care to see that she was not left alone. There is no charge that she made secret trips with Whitfield or with any other man. It is significant that at or about the time that Earl contracted this venereal disease, he frequently stayed away from home all night. When away over night, he generally had his automobile with him, and yet he testifies that he stayed at his mother’s house, which was only three miles from his own residence.

In passing, it may be remarked, that one of the- suggestive features of this case is that when the defendant communicated with his counsel and filed his answer to the petition, he failed to advise them of the charges against petitioner contained in his cross-petition, which, as hereinbefore stated, was subsequently filed.

The conclusion of the court is that the petitioner is entitled to a divorce, and in her behalf a decree nisi is accordingly directed.


author: Backes, Y. O.

text:
    Cape May Yacht Club v. Cape May Yacht and Country Club.
    [Decided April 28th, 1913.]
    1. The jurisdiction of courts of equity to prevent injury from infringement of trade-names has been liberally exercised and applied in all circumstances -whenever it appeared that the name was an established, dis•tinctive and valuable adjunct to an undertaking, whether used to distinguish manufactured articles, a place of business, or a corporation, commercial, or one formed not for pecuniary gain.
    2. All that is required to bring into activity the injunctive powers of the court is to inform it that the complainant’s trade is in danger of harm from the use of. its name by the defendant in such a way as is calculated to deceive the public into the belief that the defendant’s affairs, in the respect complained of, are those of the complainant.
    3. A court of equity will lend its aid to restrain the unfair use of the name of a corporation formed not for pecuniary profit, to protect its property rights, i. e., the corporate entity, membership, its popularity and influence, and all that goes with them, of which the name is merely the badge.
    4. A fraudulent intent need not be shown to invoke the aid of the court, the test being: 'Is the resemblance calculated to mislead or confuse, to the complainant’s damage?
    5. Where the complainant was incorporated by the name of “Cape May Yacht Club” to engage in the pastime of yachting and boating by its members, and afterwards certain dissatisfied members seceded and incorporated the defendant, assuming the name of “Cape May Yacht and Country Club,” and the defendant embarked in the same line of amusement purveying as the complainant was engaged in, and exploited itself in the same immediate community where the complainant’s property rights were localized, i. e., Cape May harbor; located its temporary club house at a point of vantage near the inlet to the harbor, where its ensign would first greet and signal a welcoming invitation to yachtsmen bent upon visiting the complainant, and advertised and gave banquets and fetes upon occasions when the complainant was celebrating similar social .affairs, the conclusion is irresistible that the defendant imitated in part the complainant’s name designedly with a view to attracting attention from the complainant and drawing to itself the patronage and prestige which the complainant would otherwise enjoy, and there can be no doubt left in the mind that the defendant was persuaded in the selection and use of its name by motives which were both selfish .and sinister and intended to mislead and confuse.

      6. Where the complainant’s pennant consisted of a white ground, blue border of one-fifth of the hoist of the flag containing twelve white stars with a large blue star in the centre of the ground, and the flag adopted by the defendant is in all respects as to size, color and design like that of the complainant, except .the star in the white ground is red instead of blue — Held, that what has been said with reference to the use of the name, applies to the pennants. They are identical save as to the inconspicuous color of the centre star. It would require an informed mind and a trained eye to distinguish them.

      Messrs. McCarter & English, for the complainant.

      Mr. Lewis Starr, for the defendant.
   Backes, Y. O.

The complainant was incorporated by the name of “Cape May Yacht Club” in 1904, to engage in the pastime of yachting and boating, by its members during the summer vacation period. It soon had a large membership, composed principally of summer residents of Cape May. A club house was built at Skellenger’s Point, on Cape May harbor, with restaurant and • sleeping quarters, where members and their friends and visitors, members of like clubs, were sheltered and entertained. Other inducements to membership included regattas, musicales, banquets and the entree to club houses of, and the courtesy of entertainment by, many similar associations located along the coast and elsewhere. The .pennant of the complainant consisted of a white ground, blue border of one-fifth, of the hoist of the flag, containing twelve white stars, with a large blue star in the centre of the ground. This was registered in “Lloyd’s,” a magazine devoted to yachting news. By the ensign, when in position at the mast-head of the member’s yacht, the craft and the member were recognized by and known to the fraternity of nautical sportsmen.

The club flourished financially, being sustained by the membership dues and the receipts from the club house entertainments. Its standing and. repute with kindred associations were of the best. In the summer of 1912, dissension arose over the building and location of a proposed new club house. Dissatisfied members ' seceded, organized and incorporated the defendant, assuming the name of “Cape May Yacht and Country Club.” It established headquarters on the harbor directly at the inlet, and is now building a large and commodious house on the shores of the harbor, some distance away but nearer to the inlet than the house of the complainant. The flag adopted is in all respects, as to size, color and design, like that of the complainant, except the star in the white ground is red instead of blue, and during the past summer was carried by the members on their boats and displayed by the defendant on a mast in front of its club house. Some confusion occurred in the delivery of mail and of supplies and in news publications in the daily papers, and it may fairly be assumed that confusion prevailed regarding the identity of the flags. In this situation the complainant appeals to this court to restrain the further use of the corporate title of the defendant and of the pennant because their use is violative of’ the complainant’s property rights in its association of membership and the business and affairs carried on by it for the benefit of its members, claiming that the'defendant fraudulently resorted to both the name and flag for the purpose of not only beguiling the public into membership in the defendant’s organization, under the belief that they were joining the complainant’s association, but also to mislead members of other yachting associations into visiting and patronizing the defendant’s club house, as well as to induce such other associations to entertain its members, under the impression that they were of the complainant’s group.

■ The jurisdiction of courts of equity to prevent injury from infringement of trade-names has been liberally exercised and applied in all circumstances whenever it appeared that the name was an established, distinctive and valuable adjunct to an undertaking, whether used to distinguish manufactured' articles, a place of business, or a corporation, commercial, or one formed not for pecuniary gain. All that is required to bring into activity the injunctive powers of the court, is to inform it that the complainant’s trade is in danger of harm from the use of its name, by the defendant, in such a way, as is calculated to deceive the public into the belief that the defendant’s affairs, in the respect complained'of, are those of the complainant. Eureka Fire Hose Co. v. Eureka Rubber Manufacturing Co., 69 N. J. Eq. (3 Robb.) 159; affirmed, 71 N. J. Eq. (1 Buch.) 300; Van Horn v. Coogan, 52 N. J. Eq. (7 Dick.) 380; Wirtz v. The Eagle Bottling Co., 50 N. J. Eq. (5 Dick.) 164; Humphrey’s Specific Hom. Med. Co. v. Wenz, 6 N. J. L. J. 43, are illustrations of the restraint upon the use of a name employed"to distinguish manufactured articles. Wilcoxen v. McCray, 38 N. J. Eq. (11 Stew.) 466; Busch v. Gross, 71 N. J. Eq. (1 Buch.) 508; O’Grady v. McDonald, 72 N. J. Eq. (2 Buch.) 805, are instances of interferences to protect names of business places. Eureka Fire Hose Co. v. Eureka Rubier Manufacturing Co., supra; Edison Storage Battery Co. v. Edison Automobile Co., 67 N. J. Eq. (1 Robb.) 44; International Silver Co. v. Rogers Corporation, 67 N. J. Eq. (1 Robb.) 646; Bear Lithia Springs Co. v. Great Bear Spring Co., 71 N. J. Eq. (1 Buch.) 595; The L. Martin Co. v. L. Martin & Wilckes Co., 75 N. J. Eq. (5 Buch.) 39, áre eases in which the use of the distinctive feature of a corporate name of a commercial corporation came under the ban. In St. Patrick’s Alliance of America v. Byrne, 59 N. J. Eq. (14 Dick.) 26, the complainant alleged that the defendants who were suspended members of the complainant, sot up an independent and spurious alliance, using the name of the complainant. Vice-Chancellor Reed, in disposing of the point, but not the motion, says: “.blow, it is undoubtedly the prerogative of a court of equity to enjoin a corporation that is using the name of another corporation to the injury of the latter. The name may stand as a trade-mark, which a court of equity will protect against infringement.”

The cases of International Committee of Young Women’s Christian Associations v. Young Women’s Christian Association of Chicago, 194 Ill. 194; Benevolent & Protective Order of Elks v. The Improved Benevolent & Protective Order of Elks of the World, 111 N. Y. Supp. 1067; People v. Rose, 225 Ill. 496; Daughters of Isabella, No. 1, v. National Order of the Daughters of Isabella, 83 Conn. 679, are all authorities supporting the proposition that a court of equity will lend its aid to restrain the unfair use of the name of a corporation formed not for pecuniary profit, to protect its property rights, i. e., the corporate entity, membership, its popularity and influence, and all that goes with them, of which the name is merely the badge.

The defendant insists that the interpolation of the words "and Country ” in the complainant’s title, as adopted by the defendant, sufficiently distinguishes it from the complainant’s, so as to avoid misconception and confusion: that the word “’country” spells one of the objects for which the defendant was formed, and indicates its good faith in selecting it as a part of its corporate title, and lastly, that there was no fraudulent intent to counterfeit either the complainant’s name or flag.

A fraudulent intent need not be shown to invoke the aid of the court. The International Silver Co. v. William H. Rogers Corporation, 66 N. J. Eq. (21 Dick.) 119. The test is: Is the resemblance calculated to mislead or confuse, to the complainant’s damage ? Of course, if a fraudulent intent to deceive is present, the court will take hold, regardless of the consideration whether the defendant would otherwise have the right to use generic terms in its name. ’ Eureka Fire Hose Co. v. Eureka Rubber Manufacturing Co., supra. This case does not turn upon the question whether the names, in the abstract, are so similar as'to lead to uncertainty and confusion. Here the solution is to be found in the use to which the defendant has put its corporate title. The controlling factors, in my judgment, are that after the defection the defendant embarked in the same line of amusement purveying as the complainant was engaged in, and exploited itself in the same immediate community where the complainant’s property rights were localized; that it located its temporary club house at a point of vantage near the inlet to the harbor, where its ensign would first greet and signal a welcoming invitation to yachtsmen bent upon visiting the complainant, and that it advertised and gave banquets and fetes upon occasions when the complainant was celebrating similar social affairs, from all of which the conclusion, that the defendant imitated in part the complainant’s name designedly with a view to attracting attention from the complainant and drawing to itself the patronage and prestige which the complainant would otherwise enjoy, is irresistible, and there can be no doubt left in the mind that the defendant was persuaded in the selection and use of its name by motives which were both selfish and sinister and intended to mislead and confuse.

The claim that the defendant’s pursuits are amphibious, and for that reason the descriptive word “country” is appropriately used in contradistinction to a yachting club pure and simple, is disingenuous. It was- feebly averred by some of the witnesses that the defendant contemplated a golf course — a necessary accessory to a country club — to be located over a stretch of land between its club house and a distant hotel; but the testimony shows that for the accomplishment of this it would he necessary to close up -a dozen or more intersecting streets and redeem sand and waste lands at a tremendous cost.

What has been said with reference to the use of the name applies to the pennants. They are identical, save as to the inconspicuous color of the centre star. It would require an informed mind and a trained eye to distinguish them. The spirit in which the emblem was adopted by the defendant is so obvious that it cannot he characterized other than as fraudulent.

I will advise a decree enjoining the further use of the name and pennant. The complainant is entitled to costs.