text:
    Charles M. Headley v. Martha B. Leavitt.
    [Filed February 26th, 1904.]
    1. Conduct of complainant in executing a mortgage to a bank to secure certain notes held by it, and in afterwards taking up such notes, is not evidence of a previous agreement by which complainant was to take care of the notes in such bank, while defendant was to take care of notes in another bank.
    2. In a suit to enjoin collection of a judgment in an action at law, evidence held insufficient to establish a contract between complainant and defendant whereby the latter was to pay, and release defendant from liability on, certain notes, in consideration of a like agreement by defendant as to other notes.
    3. Where a suit to enjoin collection of a judgment is, in effect, one for a new trial, the chancellor may finally dispose of the merits of the cause, or may restrain defendant from enforcing his judgment unless he consents to a new trial in the action at law in which the judgment was rendered.
    4. Where, in a suit to enjoin collection of a judgment in an action at law, there is no claim that there has been any newly-discovered evidence, or that complainant was deprived of any defence through the conduct of defendant, hut the ground of relief set out is an estoppel in pais, which existed at the time of the trial in the law action, the suit is not one for a new trial, and the chancellor will hold the cause and finally determine it.
    5. The remedy for violation of an agreement not to sue within a limited .period is by cross-action at law, and such remedy is adequate unless the person making the agreement is insolvent.
    On bill for injunction.

      Mr. Linton Baiiertlmait, for the complainant.

      Mr. John II. Baches, for the defendant.
   Reed, V. C.

The facts upon which the complainant seeks relief are stated in detail in the opinion of Mr. Justice Hendrickson, delivered in this cause and reported in 55 Atl. Rep. 732. Generally, the situation is this: The complainant owned one-half of the stock of the Headley-Leavitt Company, the other half being held by William H. Leavitt and his wife — William H. Leavitt being the son of the defendant, Martha B. Leavitt. The company became insolvent and Andrew C. Reeves was appointed receiver. There were outstanding several thousand dollars of notes made for the accommodation of the company. Upon some of these notes Mr. Headley was accommodation endorser and upon some he had procured third parties to endorse for the company’s accommodation. Upon other notes William H. Leavitt was endorser and had procured the endorsement of his mother and others for the accommodation of the company. Some of these notes had been discounted bjr the Mechanics national Bank and others in the Trenton Banking Company. The allegations are that Martha B. Leavitt agreed to pay all the notes in the Mechanics National Bank, and Charles Headley agreed to pay all the notes in the Trenton Banking Company; that Mr. Headley gave a mortgage to the Trenton Banking Company to secure the payment of these notes, which mortgage was to be held until the insolvency proceedings were wound up and a dividend declared; that thereafter Martha B. Leavitt began an action at law upon the notes which had been in the Mechanics bank. At the trial under a plea of accord and satisfaction Mr. Headley set up the agreement already mentioned and the execution of the mortgage to the Trenton Banking Company, which defence, because the notes in the banking company had not actually been paid by Mr. Headley, was overruled. A bill was then filed in this court setting up. the facts already displayed with the additional facts that Headley had paid the notes in the Trenton Banking Company, and an injunction was prayed for, restraining the collection of the Martha B. Leavitt judgment. The injunction was refused in this court, but on appeal it was held that the bill disclosed grounds for an injunction. The case is now on final hearing.

Iii the meantime Mrs. Leavitt having died," her personal representative is the substituted defendant. Her death has deprived the court of her evidence and shuts out that of the complainant in respect to transactions and conversations with her. The testimony in support of the alleged contract consists of a conversation between the parties overheard by Andrew C. Beeves, who was the receiver of the company and in whose office and in whose presence the conversation occurred. His account is in substance as follows: Shortly after he was appointed receiver, he was sitting in his office at the rear of the store of the insolvent company when Mrs. Leavitt and Mr. Headley came in. They were engaged in a conversation concerning the affairs of the company — its failure, &c. He says that Mr. Headley asked for the bill-book and then got it himself from the safe; that Mr. Headley placed the book bn the top or at the back of a roller desk, and one of the parties stood at the end and the other at the back of the desk; that they went over the notes in the several banks — Mr. Headley reading them off. That after they had got through the list Mr. Headley got some paper and a list was made up; that they went over the notes, Mr. Headley saying, “I will take care of these notes,” and Mrs. Leavitt, “I will take care of these.” That one of them said, “Now, I will take care of this list if you will take1 care of the other list, and it will relieve all the parties of any responsibility/’ which remark was assented to. Mr. Beeves says that Mrs. Leavitt, after some remarks about the habits of her son, left the office. After she went out, he says, he saw the list which Mr. Headley had retained and the notes thereon were those in the Trenton Banking Company; he did not see the list which Mrs. Leavitt took away; he only saw the paper.

Mr. Beeves further says that afterwards Mrs. Leavitt presented a claim to him, as receiver, as holder of the notes which were in the Mechanics National Bank and received eight per cent, dividend, and that Mr. Headley also presented a claim for the notes in the Trenton Banking Company with two or three additional notes and received a dividend of the same per cent. No demand was made upon Mr. Beeves until the beginning of the action upon the notes, the judgment in which action is now sought to be enjoined. Tlic action was brought after another action had been begun by the receiver against the daughter-in-law of Mrs. Leavitt for unpaid subscription.

It appears in evidence that after this conversation Mr. Headley gave a mortgage to the Trenton Banking Company to secure it for the amount of the company’s paper held by -it, and that-after the trial at law already mentioned he took up these notes. This conduct of Mr. Headley is not in any way evidential of the existence of the alleged agreement between himself and Mrs. Leavitt. It was not part of the res gestee and is entirely self-serving.

It seems to me that upon a mind uninfluenced by the previous-discussions which have arisen in the case, based entirely upon the sufficiency of the allegations in the bill, which allegations were necessarily assumed to be true, the evidence falls short of establishing a contract between Mr. Headley and Mrs. Leavitt by which the latter was to pay and release all other parties, including Mr. Headley, from liability to pay all notes other than those in the Trenton Banking Company. The conversation detailed by Mr. Beeves was obviously the continuation of a previous talk entered into before entering the office. What notes each were to take care of was only to be inferred from the fact that Mr. Iieadley retained a list of notes which were in the Trenton Banking Company. What, if any, list Mrs. Leavitt took away with her does not appear and, therefore, whether the notes in suit were in that list is not apparent. But if she were to take care of the notes, including the ones in suit, it does not appear, aside from the remark “that it would relieve all the parties of any responsibility,” how she was to take care of them. Such conversation may have alluded to an arrangement by which she was to take care of these notes so as to prevent action against the parties for a time, possibly until Mr. Headley could turn himself, or until the insolvency proceedings could be concluded and a dividend ascertained, which dividend, it was then supposed, would nearly pay all claims against the company. Such remark did not necessarily mean that she ivas to relieve Mr. Headley of all liability upon the notes forever. Nor is it certain that the concluding remarks made were exactly as stated. We all know the difficulty of reproducing the exact words of a conversation that occurred some time previous, and the force of the alleged contract depends upon the exact reproduction of what was said. Mr. Beeves frankly admits that he, after this lapse of time, cannot be exact as to the words used; and upon the trial at law he gave the words as follows: “Now, these notes I will assume, if you will assume the others, and relieve me of all responsibility.” Mr. Beeves was sitting about fifteen feet from the speakers, engaged at work upon the inventory of the insolvent estate. Nor do I discover any proof of a contract from the fact that Mrs. Leavitt claimed a dividend upon the group of notes upon which the action at law was brought. This act was an assumption on her part that she held the title to this paper and that the right to receive payment of any dividends belonged to her instead of the Mechanics National Bank, who had discounted the notes. This was entirely consistent with her taking up these notes to relieve other parties from a present liability to actions at law without leading to the conclusion that she had foregone all right to assert a title against Mr. Headley, or, in fact, eventually against any -of the other parties. Her action in taking up the paper in no way discharged the parties responsible as makers or previous endorsers.

I am constrained to the conclusion that the contract set upon the bill is not proved.

Hie counsel for the complainant, however, insists that, although the contract may not be proved to my satisfaction, nevertheless the testimony presents a question which "should be submitted to a jury.

If the suit can be regarded as one for a new trial merely, I could dispose of the merits of the cause finally here, or I could advise an injunction restraining the defendant from enforcing his judgment unless and until he consents, to a new trial in the action at law in which the judgment was obtained. But I do not regard the suit as one for a new trial. It is neither claimed that any evidence has been newly discovered nor that the complainant was deprived of any defence through the conduct of the defendant. The ground upon which the complainant was held to be entitled to relief was that, assuming the facts stated in his bill to be true, he had an equitable defence at the time the action at law was tried.

The contract displayed in the bill, as construed by the appellate court, was this: If Headley would within a reasonable time take up the notes in the Trenton bank, then Mrs. Leavitt would take up the notes in the Mechanics bank; and it was held that Mrs. Leavitt, in suing Headley upon the note which she had so promised to pay before the reasonable time given Headley had expired, violated her contract.

This action of Mrs. Leavitt, coupled with the conduct of Headley after the contract and induced by it, was held to constitute an equitable defence to the action.

It is quite clear that the equitable defence could not rest upon the ground that Mrs. Leavitt had promised not to sue within a limited period, for the remedy of Headley for the violation of such an agreement was by cross-action at law. This remedy was adequate unless it were shown, which it is not, that Mrs. Leavitt was financially irresponsible. The equitable defence must have been found in the other facts, namely, that Headley, relying upon the promise of Mrs. Leavitt, had given a mortgage to secure the Trenton bank and had delaj'ed taking measures to indemnify himself against the'note of William H. Leavitt during' the lifetime of the latter.

The defence rested upon an estoppel in pais.

This places the cause in a position similar to that of Ruckelshaus v. Borcherling, 9 Dick. Ch. Rep. 344; S. C. on appeal, 10 Dick. Ch. Rep. 589.

In that ease the court held the cause and finally determined it.

I am constrained to the conclusion that the bill should be dismissed.


source: Caselaw Access Project

author: Reed, V. C.

license: Public Domain

text:
    Bayard Stockton et al., trustees, &c., v. Edward J. Dillon et al.
    [Filed March 2d, 1904.]
    1. Mortgagors in two mortgages which had been foreclosed, being' desirous of staying a- sale, secured from petitioners an advancement sufficient to satisfy the interest and costs, and procure an assignment of the second mortgage; and the mortgagors made a lease to petitioners of the mortgaged premises at a specified monthly rental, the total rental being egual to the sum advanced, and the second mortgage was also, assigned to petitioners. On an issue as to whether the lease amounted, to a mortgage, xhe second mortgage being additional security, or whether' there was an actual renting, with the lease secured by the second mortgage, it appeared that no interest on the money advanced had ever been demanded or paid, and while at one time petitioners’ office had made up1 a statement as to the amount due under the second mortgage, showing a credit each month of the same amount as the rentals stipulated in the-lease, it appeared that the person who -made up the statement had no. knowledge of the actual character of the transaction involved. — Sell, that the lease was not in effect a mortgage, and hence the mortgagors, could not redeem the lease.
    2. While the mortgagors were entitled to pay off the decree directing sale of the premises, they could not hold it alive as a menace to the-leasehold interest of petitioners.
    On bill to foreclose.

      Mr. Scott Scammcll, for the complainants.

      Mr. Edward 0. Long and Mr. Linton Satteriliwait, for -the •defendant, the Bergner & Engle Brewing Company.
   Reed, V. C.

There were two mortgages upon the property of Dillon and Donnelly; the first was held by the complainants and the second by Mary Ann Connor. On May 28th, 1900, a bill was filed to foreclose the first of these mortgages, and on August 1st. a final decree was made directing a sale of the premises, and that out of the proceeds there should be paid to the complainant '$1,627.23, and then to Mary Ann Connor, the holder of the second mortgage, $1,381.66.

On June 30th, 1903, the Bergner & Engle Brewing Company filed a petition setting up the filing of the bill by the complainants and final decree entered in the suit on August 1st, 1900, as already set out. The petition set up that after the making of the said decree Dillon and Donnelly solicited the brewing company to advance them sufficient money to stay the sale of the said property under said decree; that thereafter it was agreed between the browing company, through its agent, William H. Eiegel, and Dillon and Donnell}', that the company would advance $1,381.66 (the true sum being $1,400) to Dillon and Donnelly; that said sum would be sufficient to satisfy the amount of accrued interest and costs on said decree, and would satisfy the said Mary Ann Connor the amount due to her, and would procure from her an assignment of her mortgage on said premises, and that in consideration of the advancement of the said sum Dillon and Donnelly would give the petitioners a lease ■on said premises for four years and eight months from the 1st day of October, 1900, the rent to be paid in advance; that in accordance with said agreement, entered into with the knowledge of the complainants in the foreclosure suit, the petitioners did advance the said sum to Dillon and Donnelly, who made a lease to Eiegel, the agent of the brewing company, for four years and eight months, and also procured an assignment of the Connor mortgage to the company as a guarantee that the brewing company would not be disturbed in its possession of the leased premises by reason of anything in complainants’ mortgage. The petition then set out that on May 14th, 1903, the complainants made an affidavit of the amount due upon the decree and that execution was issued, under which the property was advertised for sale; that the petitioners have tendered the full amount of the decree to the complainants, requesting them to assign the decree, which the complainants refused to do.

The petition prayed that the petitioners might be made a party to tire foreclosure suit and be permitted to file an answer or cross-bill. The rule upon all the parties in the foreclosure suit, including Dillon and Donnelly, was allowed, and upon its return an order was made admitting the petitioners as a party and permitting it to file an answer or cross-bill.

In its cross-bill the brewing company set out the same facts-as appeared in its petition, and asked to be permitted to redeem the mortgage of the complainants upon paying the amount due upon the decree, with accrued interest and costs, and in a supplemental cross-bill and affidavits asked that the sheriff been] oinecl from selling the property under the said decree. An interlocutory injunction was directed.

The brewing company deposited in this court the amount of the decree, and the money was taken out by the complainants' on July 28th, 1903.

Dillon and Donnelly filed an answer to the cross-bill. In the answer they admitted that the sum of $1,400 was advanced by the brewing company for the purposés set out in the cross-bill, and that a lease was given, and that the Connor mortgage was assigned. But it denies that there was any understanding that the foreclosure proceedings should be indefinitely postponed.

The answer asserts that a payment of the $1,400 was made as a loan, with the security of the said lease, and that it was agreed that in case Dillon and Donnelly should pay the said loan, without interest, that then the brewing company should deliver up all obligations lielcl by it for the security of the loan. It asserts, also, that the Connor mortgage ivas an additional security for the said loan. It sets up a.tender to the brewing company of the amount due upon the said loan, and the refusal of the com-, pany to deliver up the lease and mortgage. It also sets up that they are ready and willing to pay the amount of complainants’ decree, as well as the amount due to the brewing company. Upon this cross-bill and answer, the case was set down for final hearing.

Upon the hearing it appeared that the brewing company advanced the $1,400, out of which $242.49 was paid upon the Connor mortgage and $219.79 was paid as the costs, with accrued interest upon the complainants’ decree, upon payment of which complainants consented to stay the sale of the premises. And it also appeared that the lease for four-years and eight months, the term beginning October 1st, 1900, at the yearly rent of $300, to be paid in equal monthly payments of $25 each, was made. Attached to this lease was a receipt given by Dillon and Donnelly to Mr. Riegel, the agent of the brewing company, for the sum of $1,400, expressed to be in full for rent of said premises herein described, for the term of four years and eight months. This receipt is dated “Trenton, October 1st, 1900.”

On October 7th, 1900, the brewing company took an assignment of the Connor mortgage.

It is perceived that tire effort by Dillon and Donnelly is practically to redeem the lease and the decree from the control of the brewing company. The pleadings are not exactly conformable to practice, as the effort should have been made by cross-bill and not by answer. But the object of the parties is clear and the pleadings can be amended if it is found necessary to reach the result aimed at, namely, to determine the character of the lease. It is manifest that Dillon and Donnelly, as mortgagors, have the right to pay off the mortgage decree against them whenever they choose to do so. This, however, does not seem to be their purpose, so far as that purpose is disclosed in their answer, unless they can, at the same time, redeem the lease.

I will therefore consider their right to redeem.

It is perceived that the lease was given for a term which, at the rental named, viz., $25 a month, would amount to exactly the amount of money advanced. As already observed, the brewing company insists that the $1,400 was understood to be advanced as payment of rent in full for the term. It insists that while the money was advanced for the benefit of Dillon and Donnelly, it was not advanced as a loan, but was payment ■of a consideration for the term, just as the company might have bought any other property of Dillon and Donnelly and paid them the cash for the purpose of aiding them financially. As already observed, the assignment of the Connor mortgage to the brewing company is said by it to. have been as security that the company would have the enjoyment of the full term of the lease, and, as said by Dillon and Donnelty, that it was as security, in addition to the lease, for the repayment of the same loan.

There is nothing in the case or upon the face of the papers to show that the lease is a mortgage, unless a statement made tip on January 5th, 1903, by someone in the office of the brewing compan}', can be so regarded. This statement was made up at the request of the solicitor of the complainants, for the purpose of ascertaining how much was due upon the Connor mortgage. This statement, after fixing the amount due upon the mortgage on August 7th, 1900, allowed a cash credit each month, from July 6th, 1901, to January 5th, 1903, of $25, amounting to $475. This credit was obviously for rent under this lease.

But it is clear that the person who made up this statement did not understand the character of the transaction b3r which the mortgage had come into the' possession of the brewing com•pany. According to the testimony of neither party were the rents to be applied oar the mortgage. By the insistence of Dillooa and Donnelly, the assignment was made to secure the payment of the $1,400 loara. Now, of the $1,400, $1,200 was paid when the lease was made, and $200 was paid by Connor, the sub-lessee from the brewing company — he paid the rent for eight months to Dillon and Donnelly, or for their benefit, in paying for repairs upon the premises. This eight months began October 1st, 1900, and ended June 1st, 1901. So that, in view of the situation taken by Dillon and Donnelly, only $1,200 was due to the brewing company on June 1st, and by the application of the rents from June 1st, 1901, to January 5th, 1903 (nineteen months), amounting to $475, there was left of $1,200 on the last date, $725 due.

The only inference that can be drawn from the statement is that the company understood that it-owned the Connor mortgage absolutely, and that the lease was to be used as collateral security for the payment of that mortgage. This inference, as already observed, is opposed to the position taken by both parties, and the statement based upon it was made by someone who was ignorant of the situation.

In my judgment, the lease is what it purports to be — a grant of a term for years with a fixed rental paid in advance. The length of the term at the rent fixed seems to be a fair rent. The same sum was paid by the sub-lessee, and makes up exactly the sum advanced. No interest upon the $1,200 or the $1,400 was ever paid or demanded, and it is quite clear that no- payment of interest was ever in the minds of the parties. Now, one of the tests of whether what appears to be an absolute transfer or conveyance was in fact a mortgage is whether a debt remains due from the grantor to the grantee. If interest was paid or was to be paid, the presumption would be that there was a debt upon which interest could accrue. It is inconceivable that an interest-bearing debt was understood to exist, after the execution of this lease.

Another test is whether the value of the thing granted is greatly in excess of the sum advanced or paid. In this case it 'is of the exact value of the sum paid.

Again, if the lease was a mortgage, when was the debt due for which it was given ? It is quite clear that the brewing company could not demand the payment of the $1,400, or any part thereof, after the lease was made, as no sum remained payable, either upon demand or at any particular period. Now, the right to redeem is the inseparable instance of every mortgage, but the right to redeem cannot be asserted until the mortgage debt can be demanded by the mortgagee. Jones Mort. §§ 1088, 1052.

I am, for these reasons, constrained to the conclusion that Dillon and Donnelly are not in a position to redeem the lease and the Ann Connor mortgage.

The right of the brewing company to redeem the mortgage from the complainants is clear.

As already remarked, Dillon and Donnelly can pay off the decree now held by the brewing company, but they cannot hold it alive as a menace to the leasehold estate held by the brewing company in the mortgaged premises.


text:
    Morton Trust Company, trustee, v. The Home Telephone Company of Trenton, New Jersey.
    [Filed May 2d, 1904.]
    1. Where third parties advance money to a corporation to pay interest coupons, which, by the terms of the mortgage securing the coupons and bonds to which they are attached, have preference over the bonds, and receive the coupons in return for their advances in the belief that they succeed to the rights of the bondholders in the coupons by purchase, the bondholders may, nevertheless, insist on their mortgage lien free from the purchased coupons, unless they understood or had reason to inquire, that the third parties were buying the coupons instead of the corporation paying them.
    ' 2. Where interest coupons, having preference over the bonds to which they were attached, were turned over to the corporation by which they were issued to be cashed and were canceled as to the bondholders, no subsequent information, either to the bondholders or to purchasers of the bonds from them to the effect that the coupons were sold to third parties instead of being paid by the corporation, would affect the rights of the bondholders or purchasers to hold the bonds discharged from the lien of the coupons.

      3. A promise made to coupon-holders to see that the fund arising on foreclosure sale would he sufficient to meet their claims was without consideration, where, if the promise had not been made, the coupon-holders would not have taken any steps beyond securing that result.
    4. There was no sale of interest coupons where the holders turned them over to the president of the 'corporation which issued them, at the company’s office, for payment and cancellation, and were not informed by him or anyone that he was purchasing the coupons, and had no reason to suppose that the corporation was not paying them.
    5. Where interest coupons are presented to the corporation which issued them, and are taken'up, whether the transaction amounts to a payment of the coupons or a sale to a third party who advances the money to take them up, is a question of fact.
    On exceptions to a master’s report in a foreclosure suit.

      Messrs. Vredenburgh, Wall & Queen, for the exceptants.

      Mr. Frank 8. Katzenbach, Jr., contra.

   Reed, V. C.

A mortgage, dated October 1st, 1896, was executed by the Home Telephone Company upon its property to the State Trust Company, trustee, afterwards merged into the Morton Trust Company, to secure three hundred coupon bonds of the par value of $500 each. The property of the Home Telephone Company was sold pendente lite and the proceeds, amounting to $20,000, paid into court:

The question underlying the exceptions to the master’s report is whether certain coupons have precedence in payment over the bonds, themselves in the distribution of this fund.

The mortgage, in its eighth clause, in substance, provides as follows:

“In ease of default in payment, it shall be lawful for the said trustee to sell the mortgaged property and apply the proceeds as follows: First, to the payment of the costs and expenses of such sale; second, to the payment of the coupons, or interest warrants hereby secured to be paid, and then due and unpaid, pro rata, and without discrimination or preference, except that in case such proceeds shall not be sufficient to pay the same, and also the bonds hereby secured to be paid in full, such payment or upon interest coupons shall be in the order of date of their maturity; third, to the payment of the bonds.”

This language confers upon the coupon-holders the right of payment prior to the payment to the holders of the bonds themselves. The master found that, notwithstanding this clause, ■certain coupons presented to him, while good in the hands of those presenting them as proof of a debt against the company, were yet subordinated to the lien of other coupons as well as the lien of the-bondholders. The coupons thus disallowed had been paid for by money which certain stockholders of the company had advanced for the purpose of saving the credit of the corporation.

The ground upon Avhich the master reached this conclusion was that these coupons were, as to the other coupons and bondholders, to be regarded as canceled. The master put his conclusion upon the well-settled doctrine that if third persons, under an arrangement with a corporation, have advanced money to pay the interest upon bonds and as. security for their advance are allowed to take up and retain uncanceled the coupons representing such interest as they are presented by the several bondholders for payment, these coupons will stand as valid securities in the hands of the payers as against the corporation, and the. mortgage by which they are secured may be enforced for their benefit; but as between the payers and the bondholders who presented their coupons for payment and received the amount in ignorance of the fact that they were paid by third parties and transferred to them without being canceled, or who supposed them to have been paid, the latter have prior equities; so that if upon foreclosure of the mortgage covering the bonds and coupons the sum realized is not enough to pay the face of the bonds and the matured coupons, the parties so advancing the money to take up the coupons are not entitled to share in the proceeds of the sale. 5 Thomp. Corp. § 6116. The facts are in substance these: The officers of tire telephone company discovered that they could not pay the coupons maturing October 1st, 1899, out of the earnings of the company. Mr. Atkinson, a director and some time treasurer of the company, rvas so informed by Mr. Risdon, the president. Mr. Atkinson suggested to Mr. Risdon that the passing of this payment was not good judgment and would injure the company, and further suggested that he had friends who would come in and assist in raising money to pay the coupons if Mr. Risdon would help in so doing. Mr. Risdon then said that he would endorse a note for $2,500, the proceeds to be used for this purpose, if Mr. Atkinson and his friends would raise $2,000— $4,500 being required to pay the October maturing coupons. Money was SO' raised and deposited in the Broad Street Rational. Bank, of Trenton, in which bank the $2,500 note, endorsed by Mr. Risdon, was discounted. Mr. Atkinson became treasurer' of the telephone company on December 2d, 1899. The preceding October coupons were still unpaid. He notified the bondholders that they could have their coupons paid by presenting them at the Broad Street.Rational Bank, at Trenton.' Most of the bondholders placed their coupons in their local business bank for collection, whence they were forwarded to the-Broad Street bank and there cashed. Mr. Atkinson, after the failure to pay the October coupons when they matured, represented to the bondholders that he would endeavor to bring money into the company and rehabilitate it, and procured from most of the bondholders a paper by which they agreed not to. take any action against the company before January 1st, 1900.

As already observed, before that time, the amount of $4,500-had been raised, deposited in bank and the bondholders notified to present their coupons to the Broad Street Rational Bank-It is to be observed that of the $4,500, $2,000 in cash was advanced by Mr. 'Stillman.

When the coupons, payable on the following April, .were about to mature, the company was short.$2,500 of the amount sufficient to pay them, and Mr. Atkinson procured $2,500 from William J. Davis.

When the succeeding October coupons were about to mature,, he procured an additional $4,500 from Mr. Davis., These maturing coupons were paid at the Broad Street Rational Bank in the-same manner as those of October, 1899, had been paid. This was the last payment of coupons. After the payment of the coupons-by the Broad Street Rational Bank, enough of them were transferred to Mr. Stillman, Mr. Davis and Mr. Risdon, respectively,. to equal the amounts of money advanced by them, namely, $11,880. These gentlemen claim priority of payment for this sum out of the fund in court. The question thus propounded is whether, in respect to the bondholders, the transaction was a purchase of the coupons by Mr. Stillman, Mr. Davis and Mr. Risclon, or whether it was a payment of the coupons by and for the company with money which those gentlemen had advanced. There seems to be no doubt that those who advanced the money to pay for the coupons expected to get the rights of the holders of the coupons. The receipt given by Mr. Atkinson to Mr. Stillman was for money to be used to taire up coupons due October 1st, 1899. The money raised by Mr. Atkinson was not deposited to the credit of the company, but to the credit of Mr. Atkinson, as I understand the testimony, and the coupons were received by the bank and charged up to this fund. The solution of the question propounded, however, does not stop with the ascertainment of the intention of those who advanced the money; it involves the further question whether the bondholders understood, or had reason to inquire, whether Mr. Atkinson was buying the coupons. For even if a third person was buying them instead of the company paying them, the bondholders may insist on their mortgage lien free from these purchased coupons. The reason is that it takes two to make a sale and, moreover, the coupon-holders might have preferred to foreclose rather than to sell their coupons. 2 Cook Stock. & Stockh. § 772. The gentlemen whose money paid for these coupons place their right to assert a prior lien on the authority of the case of Ketchum v. Duncan, 96 U. S. 659, decided by a divided court. In that case Duncan, Sherman & Company had advanced money for the purchase of coupons on the bonds of the Mobile and. Ohio railroad. The federal supreme court held that they were purchasers, because there were circumstances attending the transfer which should have awakened the attention of holders of the coupons and lead them to inquire as to the true character of the transaction. The circumstances were that the coupons were not paid in the usual manner, or at the usual place, or by the persons accustomed to pay them; they were not paid by check, as they had been theretofore paid; some of the bondholders knew that the company was not paying the coupons, others were informed that the Bank of Mobile was purchasing them, and others did not know that the company was not paying and made no inquiry. Some of the coupons were paid in London and some in New York City. Those who presented their coupons in New York were told that Duncan, Sherman & Company were purchasing them. There were notices posted in the Bank of Mobile and in the office of the company that the bank was purchasing November coupons. Notice of an intention to purchase was publicly given by the London house of Duncan, Sherman & Company.

Most stress was laid by the court upon the fact that the holders, upon delivery of the coupons, were paid without checks. It was said that the holder, from these facts, must have known that the bank would hold the coupons as a voucher in its settlement with the railroad company. I am unable, however, to appreciate the force of the last inference. If the coupons were cashed, I cannot perceive why the holder would not assume that they were paid out of the money of the company, and so by the company, whether they were paid by cash or otherwise. An arrangement between the bank and the company that the coupons themselves should be accepted as vouchers in the settlement of the bank’s account with the .company could make no possible difference to the holder, and, as it seems to me, would have no significance whatever for the holder. It is the usual method of collecting coupons. They are deposited in the holder’s bank for collection and forwarded to the company’s bank and paid upon the delivery of the coupons. The inference arising is that it is charged to the company’s bank account. The case of Ketchum v. Duncan, supra, is the subject of some interesting observations in the opinion delivered in Wood v. Guarantee Trust Co., 128 U. S. 416.

In the present case I am unable to see how it can be concluded that the coupon-holders were parties to a sale of their coupons. Some of them who were applied to by Mr. Atkinson to assist in raising money were told that he wished to bring new money into the company and to rehabilitate it. Others knew that the company was in temporary financial embarrassment, by reason of their October coupons remaining unpaid and of their agreement to foreclose before January 1st, 1900. When, however,, in December, they received notice to present their coupons to the Broad Street National Bank, no one, so far as appears, knew that the money out of which the coupons were to be paid was not the money of the company, nor whether it had been raised by loan or by sale of stock, or partly derived from the business of the company. No notice was given to these holders that their coupons were being bought. It was not the intention of those who raised the money to disseminate such a notion. They were interested, as stockholders, bondholders and officers, in preserving the credit of the company and the value of their stock and securities. It was not their policy to have it go out that the coupons were not being paid, but were accumulating as a debt, preferable to the bonds themselves. Mr. Atkinson, who gave the notice to the bondholders, was the treasurer of the company. Why, then, should not those notified not have supposed that they were to be paid by the company P Indeed, there is nothing shown which have put the bondholders upon inquiry, except the fact that the coupons were to be paid at the Broad Street National Bank, in Trenton, instead of at the office of the trust company. But this bank was located at the home of the company, and its substitution as a place of payment would seem to be the most natural occurrence, and would seem to have no significance as an indication that the company were not paying the coupons. At this place the October, 1899, coupons were paid, and here the coupons maturing in April and October, 1900, were regularly paid. Most of them, as already remarked, were paid through the agency of the local bank of the bondholders.

In my judgment, there was practically nothing to inform the coupon-holders that they were selling their coupons, and there was everything to indicate to them that their coupons were being cashed by the company itself. But it is further insisted that Mr. Hamill, who has acquired most of the bonds of the telephone company, is precluded from asserting the prior lien of the bonds over these coupons, because one Bedford, from whom he acquired them, had notice of the outstanding claim of the coupon-holders.

It would be profitless to examine in detail the testimony as to the alleged notice possessed by Mr. Hamill, Mr. Bedford or any other person interested in the purchase of the bonds. If it should appear that the purchaser of the bonds knew that the coupon-holders claimed precedence in lien, it would not in any way affect the relative right of the parties, for these rights were fixed when the coupons were cashed. If by that act they were canceled as to the bondholders, no'subsequent information received by a bondholder or a purchaser would discharge the lien of the bonds. Ho information received by any person who made subsequent purchases of bonds would affect the status of those instruments.

It is also insisted that Mr. Hamill promised to pay the coupons. This promise is asserted to have been made in an interview between Mr. Hamill and Messrs. Davis, Wearts and Stillman, in August, 1901. It is insisted that at that interview Mr. Hamill made an absolute promise to pay the amount of these coupons to the holders thereof.

My examination of the testimony respecting the interview or interviews between Mr. Hamill and these gentlemen leads me to the conclusion that Mr. Hamill, after examining the eighth clause in the mortgage, admitted that by the terms of that clause the coupons had a superior claim to payment over the bonds. He admitted this as a matter of construction of the instrument, and thereafter all the parties at the interviews, assumed that they should be first paid, and the question discussed was merely how and when they should be paid. It seems-quite apparent that all that took place was based upon the view-taken of the legal status of the coupons under the terms of the-mortgage, and that instead of there, being a promise to pay there was simply an assumption by all the parties that the liability rested upon the property mortgaged for the payment of the coupons first. This led to an engagement on the part of Mr. Hamill, in order that the sale of the property might not be delayed by litigation, to see that enough, was paid for it, and paid into court, to cover the claim for these coupons. It is to be observed, however, that in the letter in which this arrangement was put in a written shape Mr. Hamill said that he would bid sufficient to cover these claims, if they were subsequently determined to be good. I fail to find any proof of any absolute promise by Mr. Hamill to pay these claims. It is to be remarked, however, that if Mr. Hamill had personally promised to pay the coupons, the promise would seem to bo an entire nullity.

This view does not rest upon the obvious fact that if made it was made under a mistaken view of his legal rights, but rests upon the fact that there seems to have been no consideration to support such a promise. The purpose of Mr. Ilamilks arrangement was to assure those gentlemen that the fund arising from the sale of the property would be sufficient to meet their claim as coupon-holders. Now, it does not appear that if the promise had not been made the coupon-holders would have taken any steps beyond securing that result. This result was brought about at the sale, and therefore the holders of the coupons stand in exactly the same posture as though the alleged promise had not been made.

The finding of the master upon this branch of the case is affirmed.

The master allows, as preferred claims upon the fund in court, the amount paid by Mr. Risdon for some coupons in the years 1897 and 1898. The circumstances surrounding the acquisition of these coupons are disclosed entirely by the testimony of Mr. Risdon.

Mr. Risdon was elected president in 1896, and continued in that position down to 1901. In speaking of these coupons, he said: “I cashed these coupons; I do not recall for whom; it is not a matter of record.” He saj's he thinks he held a number of bonds in 1897, but afterwards sold them. He says he does not recall how many coupons he cashed in 1897, but presumes he cashed some in 1897 and in 1898.

lie explains as follows: “People would present their coupons there for payment, and the company-had not the funds to- pay the coupons, so I advanced it myself and retained the coupons.”

Pie was asked:

“Q. .1 suppose, as the coupons were presented, you paid them, but did not state to them that you were paying these yourself?
“A. That is right; I was under no obligation to pay them personally.
“Q. Ilid you state to anyone that you were paying them personally?
“A. No, sir.
“Q. Were you interested in keeping up the credit of the company?
“A. Tes, sir.”

• When Mr. Risdon speaks of the coupons being presented “there,” the inference is that they were presented at the office of the telephone company, and were presented to him as the head of the company.

I am nna'ble to conceive how a coupon-holder who presented his coupons to such a person at such a place, and who- was paid, with no notification that this president- of the company was purchasing them, could remain under any other impression than that the coupons were paid by the company.

. The question, as was remarked by Mr. Justice Lamar, in his opinion in Wood v. Guarantee Trust Co., supra, is always one of fact, whether there was a purchase or a payment. To be a purchase, as already remarked, it requires the consent of the bondholder presenting his coupons. So far as appears there was no consent to a sale from anyone presenting these coupons to Mr. Risdon.

I am compelled to the conclusion that the exception taken to this branch of the master’s report must be sustained.


text:
    Ara B. Stevens v. Eleanor G. Shaw.
    [Filed May 11th, 1904.]
    1. A conveyance by a paralytic of her property to her niece being-absolute in form, not mentioning its purpose — that the grantee should manage and use it for the grantor’s support during her life, any remainder to be the grantee’s for her services — and the grantor not having had independent advice, but only that of the person who took the acknowledgment, and the instrument containing no power of revocation a reconveyance may be had.
    2. Á bill to require reconveyance of property on the ground of actual fraud may be amended on final hearing to meet the proof furnished by defendant, namely, that there were other grounds therefor not inconsistent with that pleaded.
    On November 30th, 1900, the complainant executed two deeds-by which she conveyed to her niece, the defendant, Eleanor G. Shaw, three lots of land in Vineland, New Jersey. This suit is brought to compel a reconveyance of these properties and also for an accounting for the profits received from them by the defendant while the title was in her name, and also for an accounting for some eight hundred dollars of money, the control of which was passed to the defendant.

      Mr. Wheaton Berault and Mr. Howard Garrow, for the complainant.

      Mr. James Buchanan, for the defendant.
   Reed, V. C.

When the above deeds were executed the complainant was-living with the defendant and defendant’s mother. In explaining the manner by which the deeds came to be executed the defendant says:

“My aunt had many times talked with me about hen property. She said, in substance, that she wished to have the property entirely in my hands, and I advised her to let the title to it remain as it was, and let me manage it as her attorney. She repeatedly told me that she wanted me to have the property in my hands to manage and to take care of her with, and the balance remaining after her death, if any, to be mine. I told her that I knew of no way for me to have absolute control of it, except by her giving me deeds of the property, and these she constantly urged me to have prepared. I drafted the deeds and procured the notary to take the acknowledgment.”

The complainant was afflicted with paralysis, and from her own testimony appears to have little recollection, and to be of feeble mentality. Her testimony is confused and rambling, the one fact standing out clear, namely, her strong affection for and •confidence in her niece, tire defendant. That the transaction now attacked is voidable is manifest from a single feature apparent in the testimony of the defendant herself. The defendant says that the consideration of these deeds was

■“that I should manage the property, using it for the support and maintenance of my aunt during her lifetime, and the remainder, if there was any, after her decease, should be mine for my services.”

This purpose, to be carried out after the execution of the deeds, was an important feature of the'arrangement, yet in the deeds themselves there is no mention of this purpose. Of the numerous cases holding this the citation of a single one is sufficient, that of White v. White, 15 Dick. Ch. Rep. 104, 115.

Again, it appears that the only advice that the complainant had was that which Mr. Abbott, who took the acknowledgement of the deed, says he gave her at that time. He warned her that the deeds were absolute and gave the grantee absolute control over the property, and advised her to have a declaration of trust executed. He was not, however, air independent adviser. In the absence of such independent advice, coupled with the fact that there was no power of revocation in the instrument, the deeds for these reasons are voidable. Coffey v. Sullivan, 18 Dick. Ch. Rep. 296, 301.

Indeed, the voidability of the transaction between the aunt and niece upon these grounds is hardly contested, the defence being that the gravamen of the bill is that the niece was guilty of actual fraud in securing the deeds and moneys and that actual fraud is unproven by the testimony. It seems to be true that actual fraud is not proven. The complainant disclaims all recollection of having made the deeds at all. She says that she signed a paper, but she did not know what it was. She does not state with any degree of particularity that she was induced to sign this paper by the persuasion of her niece. The defendant swears distinctly that the notion of putting 'the property under her control was entirely that of the ■ complainant herself, and that she only carried such notion into effect by preparing the deeds and causing them to be executed. It seems apparent that the complainant was not deceived in respect to the character of the papers she executed. It is quite probable that from her ignorance of business and in her confused mental condition she did not appreciate the consequence of her act, but there is no testimony whatever that she was improperly induced by her niece to execute the papers.

Now, the bill charges actual fraudulent conduct on the part of Miss Shaw and, as already remarked, I find no testimony what-' ever to support this' charge. ,

The question remains, what course should be taken in this situation.

The power to amend a bill is liberally exercised. Fearey v. Hayes, 17 Stew. Eq. 425. Even on final hearing this power is exercisible if the complainant has proved a case by which he is entitled to equitable relief. Stew. Dig. Supp. 18b, tit. “AmendmentsThe limitations upon the exercise of this paper is discussed in the case of Thornton v. Ogden, 5 Stew. Eq. 723, where it was doubted by Chief-Justice Beasley whether this power should be exercised where the amendment consists of facts that materially falsify ¡the facts originally pleaded.'

The facts to be set up in the present ease by -amendment to meet the proofs axe not inconsistent with those already pleaded. Both series of facts might be true. The aihendment will be only cumulative. The proposed amendment having been made, the proofs cannot be materially varied by any additional testimony, for the facts in support of the amended bill are proven by the defendant herself and her witnesses.

I will advise an order amending the bill, and upon such amendment being made will advise a decree directing a reconveyance of the' property included in the deeds in question, and an accounting for the income for the property and for the money of complainant’s which came to the hands of the defendant, Miss Shaw, allowing her for all proper expenditures made by her to or on account of the complainant.

I think, however, that because of the form of the original bill, to which the defendant was justified in interposing' an answer denying the actual fraud charged against her, the costs of the suit should be paid out of the property of the complainant involved in this litigation.


author: Stevens, V. C.

text:
    The International Silver Company v. William H. Rogers Corporation.
    [Filed February 9th, 1904.]
    1. A man has no right to pass off his goods as the goods of a rival trader.
    2. The name of a person may become so far associated with the goods of a particular maker, that its use without explanation or qualification by another may deceive a purchaser into the belief that he is getting the goods of A. when he is really getting the goods of B. If the proof be not merely that the trader is using a particular name to designate his goods, but that he is using it in such manner as to put off his goods as the goods of his rival, that rival is entitled to restrain him from using it in that way.
    3. The rule of law is the same where a corporation takes or imitates the name of a rival trader. It may, as a matter of evidence, be easier to infer the fraudulent intent or false representation, but such intent or representation must still be made out.

      4. Proof of fraudulent intent is not essential. If a representation, false in fact, though ignorantly or innocently or mistakenly made, be shown, the plaintiff is entitled to relief by way of injunction. The action of the court depends upon the right of the plaintiff and the injury to that right, not upon the motive of the defendant.
    On final hearing.
    > Mr. Edward A. Day, Mr. Iliram R. Mills (of the Connecticut bar), and Mr. John P. Bartlett (of the New York bar), for the complainant.

      Mr. Craig A. Marsh, for the defendant.
   Stevens, V. C.

This is a suit to enjoin the defendant corporation from selling or disposing of silver-plated spoons, forks or knives, or other silver-plated tableware stamped with the mark “Wm. H. Rogers,” or “William II. Rogers,” or “Wm. II. Rogers Corporation,” or any other mark of which the words “Wm. Rogers” are a characteristic part, and from applying any such mark to the boxes, wrappings or labels containing them.

The complainant is the successor of several companies which have been engaged for many years in the manufacture of silver-plated ware, and which all derive their title from three brothers of the name of Rogers, who were among the first, if not the first, to apply the art of electro-plating to its manufacture. They gained a reputation for their products, and the name “Rogers” has acquired a secondary significance in connection therewith. It has been so often decided, in cases which will be referred to in the course of this opinion, that the complainant and its immediate predecessors are entitled to the trade names Wm. Rogers & Sons, Wm. Rogers and Wm. Rogers Manufacturing Company, that any further statement of complainant’s title or the grounds on which it rests is needless.

The facts are as follows: William Henry Rogers, a machinist by trade, began the business of repairing bicycles in the year 1890, at Plainfield, New Jersey. That business declining, he looked about, as he says, for something else. In August, 1898, he formed a partnership with Joseph A. Hubbard, a tax assessor, who agreed to advance $3,000 with which to commence the silver-plated ware business. Eogers, who had no money, was to put his time against Hubbard's capital, and the profits were to be equally divided. He had had no experience in this business and took no steps to qualify himself to conduct it, except, as he says, to talk with a jobber in Hew York, and some jewelers in Plainfield; to visit some of the department stores, to converse with the salesmen there and to read catalogues and advertisements. He had no knowledge, practical or theoretical, of the process of electrotyping and he took no steps to acquire it. Among the catalogues he read were those of the William Eogers Manufacturing Company. With this preparation, he went to the factory of the Bristol Brass and Clock Company, in Connecticut. He selected patterns for spoons and forks, and arranged with the company to make and box them, and stamp them with the name "Wm. II. Eogers Co.'' During the continuance of the partnership, which lasted from August, 1898,' to August, 1899, he obtained from them, and from the Silver Plate Cutlery Company, goods which cost in all from $5,000 to $6,000. These he sold mostly at wholesale, and at slight, if any, profit. Shortly after the dissolution of the partnership he entered into a written contract with the M. S. Benedict Manufacturing Company, of Syracuse, a large concern, also engaged in the business of manufacturing and selling plated ware. Under this contract he sold to that company the greater part of all the goods which the Bristol and other companies were making for him. From August, 1899, to August, 1900, they amounted in value to about $30,003, and were stamped with the name “Wm. H. Eogers.”

In May, 1900, the International Silver Company commenced an action in the superior court of Connecticut to restrain the Bristol Brass and Clock Company from stamping the words “Wm. H. Eogers” or “Wm. PI. Eogers Co.” on spoons, forks and knives. The clock company answered. Although Eogers was not made a partjq he was examined on commission at Plain-field, on July 26th, 1900. On this examination most of the facts already stated were disclosed and thereafter the Bristol company ceased to manufacture for him, and entered into a stipulation with complainant not to do so. In November, 1900, complainant brought suit in the United States circuit court for the northern district of New York against the M. S. Benedict company. It did not defend the action, and on February 1st, 1901, an injunction issued restraining the use in connection with silver-plated ware, procured by William II. Rogers, of the ab: breviation “Wm.” or the initial “W.” in combination with the word “Rogers.”

What' amount of ware W. H. Rogers procured to be manufactured for him after July, 1900, and prior to the formation, on April 30th, 1901, of the William H. Rogers Corporation, does not appear. Rogers' testimony throughout is vague— vaguer, perhaps, than might have been expected, even though he was unable to refer to- his books, which he says were destroyed by fire in 1901. The probability is that his principal manufacturer having ceased to make goods for him, and his principal customer having been enjoined, the amount which he caused to be manufactured between August, 1900, and May, 1901, was very small. On the organization of the William H. Rogers Corporation, he received for his business twelve shares of stock and $700 in cash, and this, by the terms of the written transfer, included not only his stock of knives, forks and spoons, but also his toilet sets, picture frames, clocks and fancy ornaments; two wall cases and two cabinets, as well as- the unexpired lease, the good will and the trade mark of the vendor. In his evidence he says that the good will and registered trade mark were valued at $1,200, and so everything else was considered to be worth $700. The trade mark referred to in the transfer had been registered with the secretary of state on June 21st, 1900. It did not include the name “Rogers.” It consisted only of a red seal with the letter “R” in white, in the middle, and underneath the words “trade mark.'”

The subscribers to the corporate stock were William II. Rogers, forty-eight shares; Eugenia L. Babcock, thirty shares; Joseph A. Hubbard, five shares; Howard P! Reynolds, five shares, and John P. Mosher, one share. From this time on, the business seems to have prospered. After the corporation was formed (April 30th, 1901), a change took place in its conduct. Before that time everything, including the wrapping, boxing and stamping of the name “Wm. H. Rogers,” with or without the seal, had been done by the manufacturer. After that time the spoons and forks came, plated and burnished, in packages containing half a dozen gross. These the Rogers corporation buffed, inspected, wrapped (six spoons in a package) and put in boxes, labeled. x The knives sold were as before — because it was necessary to etch the name1 — completely finished by the manufacturer.

The question presented is this: (1) Shall the defendant corporation be enjoined from using its corporate name in its business? (2) Shall it be enjoined from stamping or etching that name on its plated ware? (3) Shall it be enjoined from using the words “Wm. H. Rogers” on its ware or otherwise, or from using any words of which “Wm. Rogers” are a characteristic part?

The precise point involved, while it has been the subject of repeated discussions elsewhere, does not appear to have been decided by this court. I may be pardoned, therefore, if I refer to the authorities at length, and more especially as they appear to be, in some respects, conflicting, and as the subject itself is one of considerable and increasing importance. The leading case is Croft v. Day, 7 Beav. 88. It there appeared that a blacking manufactory had long been carried on under the name of Day & Martin, and that a person of the name Day, having obtained the authority of a man by the name of Martin to use his name, set up the same trade in the same neighborhood, and sold blacking in bottles and with labels having a general resemblance to those of the original firm. He was restrained from doing so. Lord Cranworth said: “He [Day] has a right to carry on the business of a blacking manufacturer honestly and fairly. He has a right to the use of his own name. I will not do anything to debar him from the use of that or any other name calculated to benefit himself in any honest way, but I must prevent him from rising it in such a way as to deceive and defraud the public, and obtain for himself, at the expense of the plaintiffs, an undue and improper advantage.” He thus .stated the principal applicable to the case: “No man has a right to sell his own goods as the goods of another. You may express the same principle in a different form and say that no man has a right to dress himself in colors or adopt or bear .symbols to which he has no exclusive or peculiar right, and thereby personate another person for the purpose of inducing the public to suppose either that he is that other person or that he is connected with or selling the manufacture of such other person, while he is really selling his own.”

This case was followed by Burgess v. Burgess, 3 De G., M. & G. 896. A father had for many years sold, exclusively, an .article under the name of “Burgess’ Essence of Anchovies.” He took his son into partnership with him and they, until the father’s death, and the son afterwards, continued to carry on the business in the name of John Burgess & Son. A son of this son, William H. Burgess, had for many years been employed in their business. He went off by himself, and, under the name of W. H. Burgess, started a similar business on his •own account, and advertised and made a sauce which he also •called -“Burgess’ Essence of Anchovies.” The lord-justices, on appeal, refused to enjoin him, although he had been enjoined from doing certain other things by the vice-chancellor. The epigrammatic judgment of Lord-Justice Knight Bruce has often been criticised, but that of Lord-Justice Turner has been regarded as an accurate exposition of the law. He said: “No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name and another person not having that name is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses. But when the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a (question of evidence in each case whether there is false representation or not.” He thought that under the evidence there was then no such representation. The report shows-that the plaintiff was making “Burgess’ Essence of Anchovies” under the firm name of John Burgess & Son, while the defendant was making a similar essence under the name of W. H. Burgess.

Of this judgment, Lord-Justice James, in the subsequent case of Massam v. Thorley’s Cattle Food Co., 14 Ch. Div. 748, 753, said “that I take to be an accurate statement of the law and to-have been adopted by the house of lords in Wortherspoon v. Currie.” He said, further: “How, Burgess v. Burgess has been very much misunderstood, if it has been understood to decide that anybody can always use his own name as a description of an article, whatever may be .the consequence of it, or whatever may be the motive for doing it or whatever may be the result of it.”

“The fundamental rule,” said Lord Kingsdon, in another case often cited (Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. Cas. 537), is that one man has no right to put off his-goods for sale as the goods of a rival trader, and he cannot, therefore, in the language of Lord Langdale, in Perry v. Truefitt, be allowed to use names, marks, letters or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.”

One of the most recent cases in the house'of lords is Reddaway v. Banham, L. R. App. Cas. 199 (1896), which contains, especially in the lucid judgment of Lord Herschell, a thorough discussion of the principle which obtains in cases of this class. Lord Halsbury summed up the matter thus: “For myself, I believe the principle of law may be very plainly stated, and that is that nobody has any right to represent his goods as the goods of somebody else.” And Lord Herschell said: “The name of a person, or words forming part of the common 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 realty getting the goods of B. In a case of this description the 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. I-Ie 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.”

This, I think, is a very accurate expression of the law as it is Jaid down in the most recent and the most authoritative decisions- in this countiy. American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85; C. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169. On p. 188 of the last-citedi case- Mr. Justice White sa3rs: “Where the name is one which has previousty' thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied b3f any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications.”

I have thus far referred to cases in which the court was considering the right of a man to use his own name. While that right is fully recognized, it is said, in the later cases especially, and the3r are numerous, that it is the- duty of the court to restrain a man from so using his name oh or in connection with, his own goods (if that name has come to be recognized as characterizing a rival trader’s goods) as to suggest that those goods are his rival’s goods and to pass them off as such. Valentine Meat Juice Co. v. Valentine Extract Co., 17 Rep. Pat. Cas. 673.

The principle applied in the case of names óf persons is the same that obtains where the right to use geographical names, or names descriptive of the quality or composition of an article conies in question. It is open to eve^one' to tell where he carries on his manufacture; it is open to everyone to say what his wares are made of; but here, too, he must do it in such a way as not to produce deception. Thus in Wortherspoon v. Currie, L. R. 5 H. L. 508, Currie was enjoined from using the geographical name “Gleniield” in connection with the starch manufactured by him in that village. It was contended that the defendant, in describing it as made there, only told the simple truth, but the house of lords said that the mere fact that he was really carrying on his manufacture at Gleniield, and that he was, therefore, in a misleading sense, stating what was so, did not relieve him from the charge that his proceedings were intended to produce, and calculated to produce in the mind of purchasers, the belief that his article was the article of the plaintiff. The fallacj', as was said in a subsequent case, lay in overlooking the fact that a word may acquire in a trade a secondary significance, differing from its primary one, and that if it is used to persons in the trade who will understand it and be known as intended to understand it in its secondary sense, it will be none the less a falsehood that in its primary sense it may be true.

Montgomery v. Thompson, L. R. App. Cas. 217 (1891), is another striking case. The plaintiff and his predecessors had for upwards of a century carried on the business of a brewer, at Stone. Their ales had gained a high reputation under the name of “Stone Ale.” The defendant, who had just begun to manufacture ale in the same place, was restrained from calling his ale “Stone Ale,” because it was apparent that he ivas selling his ale under that designation in order to deceive the public into the belief that they were obtaining the plaintiff’s ale. It was distinetty said in one of the judgments that the defendant was entitled to brew ale at Stone, and to indicate that it was manufactured there,.but, it was remarked, there were various means of stating that fact without using the particular collocation of words that had, by long usage, become the designation of the plaintiff’s ale.

In the case of Reddaway v. Banham, L. R. App. Cas. 199 (1896), already quoted, the defendant was enjoined from using the descriptive words “Camel’s Hair” in connection with belting, although it was conceded that the/defendant's belting was made of camel’s hair. The' decision was put upon the ground that the jury had found that those words had acquired a secondary meaning in the trade, and that they did not convey to persons dealing in belting the idea that it was made of camel’s hair, but the idea that it was belting of the manufacture of the plaintiff.

The cases above cited sufficiently illustrate the trend of decision on the subject. They are all cases in which the defendant was in one sense, but in a misleading sense, telling the simple truth.

It was argued, on behalf of the complainant, that while a man might use his own name in any business, if he used it fairly, he could not give it to a corporation if it was also the name of a rival trader and had acquired a peculiar significance in connection-with that trader’s business. Ho such rule is fairly dedueible from the cases. The question being whether there was a false representation, it might in many cases be easier to infer such representation, as a matter of evidence, as a fact, where a corporation had without propriety assumed the name of a rival, than it would be to infer it where an individual of the same name came into competition with him; because, as has been often said, the whole vocabulary of names is open to those who organize a new company, while the individual is not responsible for his name and ought, ordinarily, in common honesty, to use it and do business under it. Still, the matter would be one of evidence and not of law. This distinction is illustrated by the two eases of the International Silver Co. v. Simeon L. & George H. Rogers Co., 110 Fed. Rep. 957, and Baker v. Baker, 115 Fed. Rep. 297. In the first case, it appeared that, although Simeon and George Eogers were sons of the original Eogers’ Brothers, neither of them had ever engaged in the manufacture of plated ware, and their connection with the company was due solely to their name. The company was enjoined from using the words “Eogers Bros.” or “Eogers” on its ware. In the second case, one Baker had done business under the name “Wm. H. Baker, Syracuse, H. Y.” He subsequently organized a corporation with precisely the same name, and the circuit court of appeals held that, so far as the complainant was concerned, it was quite immaterial whether he did business in that name as a corporation or in that name as an individual; that as he might have done business in the latter so he might in the former. In the latter ease,, as in the former, the question of fact to be determined was whether the corporate name contained a suggestio falsi. It was evident that in the latter case it did not, for the individual and. the corporate name were in every respect identical and their effect upon the public would necessarily be the same.

I now come to a question as to which there seems to have been considerable contrariety of judicial opinion. Is it necessary -to prove fraudulent intent ? Must it be shown not only that the representation is false in fact, but that it is intentionally false ? Some diet a, especially in the earlier cases, do go the length of so asserting, but the weight of judicial opinion is the other way. In some of the cases confusion may have resulted from a failure to distinguish between the legal and the equitable rule on the subject of false representation. “In an action of deceit to recover damages,” says Justice Depue, in Cowley v. Smyth, 17 Vr. 382, “a false representation without a fraudulent design is insufficient. There must be moral fraud in the misrepresentation to support the action.” The rule, as he pointed out, is different in equity. Eibel v. Von Fell, 10 Dick. Ch. Rep. 670, is to the same-effect. Lord Cairns, in Singer Machine Manufacturing Co. v. Wilson, 3 App. Cas. 392, adverts to this subject. He said: “In Millington v. Fox, 3 Myl. & C. 338, Lord Cottenham felt satisfied that in using the plaintiffs’ trade marks the defendants had no intention to mislead the public, yet inasmuch as the public were-in fact misled he held that the plaintiffs were entitled to a perpetual injunction. It was not sufficient for the defendants-to say that they used the marks in ignorance of their being the plaintiffs’ trade marks. How far that doctrine is capable of being reconciled with cases at law in which the scienter has been held to be essential in order to enable the plaintiff to recover (that is, to recover damages), it is not material to consider. In this court,, the rule is clear as laid down in Millington v. Fox."

In the subsequent case of Singer Manufacturing Co. v. Loog, 8 App. Cas. 15, 31, Lord Blackburn seems to have doubted whether, even at law, in trade mark cases, it was necessary to show actual fraudulent intention. And in Miller Tobacco Co. v. Commerce, 16 Vr. 23—a, trade mark case —it was held by our supreme court that proof of intentional fraud was not essential. “The injury is complete,” said Justice Knapp, “if the same label or mark is used which recommended the article to the public by the established reputation of another.” The cases in equity in this state, so far as reported, are either cases in which there was a fraudulent imitation of complainant’s trade mark or label (Wirtz v. Eagle Bottling Co., 5 Dick. Ch. Rep. 164; Centaur Company v. Link, 17 Dick. Ch. Rep. 148) or a fraudulent appropriation of a fancy name. Van Horn v. Coogan, 7 Dick. Ch. Rep. 380. In the Wirtz Case, Vice-Chancellor Van Fleet held that on the assumption that the defendant’s acts were innocent, the complainant was entitled to’ relief. “The vital question,” he remarked, “is not what did the defendant mean, but what has he done? It is no less a dictate of justice than of sound reason that every person must be understood to have intended to do just what is the natural consequence of his acts deliberately done. The aggrieved person in cases of this class is not required to show intentional fraud, but he makes a sufficient case to give him a right to protection when he shows that the defendant is using his label, or one so nearly like it as to render deception of the public and injury to himself probable.”

Lord Blackburn thus expressed himself in Singer Manufacturers v. Wilson, 3 App. Cas. 376, 391: “A man may take the trade mark of another ignorantly, not knowing it was the trade mark of the other, or he may take it in the belief, mistakenly but sincerely entertained, that in the manner in which he is taking it he is within the law and doing nothing which the law forbids, or he may take it knowing that it is the trade mark of his neighbor, and intending and desiring to injure his neighbor by so doing; but in all these cases it is the same act that is done, and in all these eases the injury to the plaintiff is just the same.’ The action of the court must depend upon the right of the plaintiff and the injury done to that right. What the motive of the defendant may be the court has very imperfect means of knowing. If he was ignorant of the plaintiff’s rights in the first instance, he is, as soon as he becomes acquainted with them, and perseveres in infringing upon them, as culpable as if he had originally known them.”

In the subsequent case of Singer Manufacturing Co. v. Loog, 8 App. Cas. 15, 31, the same distinguished judge points out that where the act was, in the first instance, done innocently, a claim at law for damages would not be maintained; but if persevered0 in, after knowledge of the facts, there would be evidence to support a legal demand for knowingly selling the defendant’s goods as and for the plaintiff’s. The same principle would apply to the ease of an accounting in equity.

That this rule is not confined to copies or imitations of trade marks, appears from the following cases: Higgins Company v. Higgins Soap Co., 144 N. Y. 462; Wyckoff, Seamans & Benedict v. Howe Scale Co., 110 Fed. Rep. 520; Hendriks v. Montagu, 17 Ch. Div. 638; North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co., L. R. App. Cas. 83 (1899). In the last case, which is particularly pertinent because it involved the taking of a corporate name, Lord Halsbury thus expressed himself: “In the result it is perfectly immaterial, to my mind, for the purpose of the decision, whether they [the company] were fraudulent or not. The question is whether this (that is, the" assumption of the name Cheshire and Manchester Brewery Company) is an injury to the plaintiff’s right. If it is an injury to the plaintiff’s right, it is perfectly immaterial whether they intended it or not. The court must restrain them from doing that which is an injury to another person, however inadvertently they may have done it.”

I will now refer to two or three of the more important cases on which defendant’s counsel relied. The first is Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537, where Chief-Justice Fuller said: “The deceitful representation or perfidious dealing must be made out or be clearly inferable from the circumstances.” He concluded 'by saying: “There is no proof justifying the inference of fraudulent intent or of deception practiced on the plaintiff or on the public.” He was not considering the precise question now under consideration, and if the case is an authority either way it rather accords with the view I have taken, for the defendant may ignorantly or innocently do that which deceives the public- and injures the plaintiff. It is this kind of deception which in the passage cited is, I have no doubt, contrasted with the wrongdoing which is called "perfidious dealing," and which involves moral guilt. In the passage quoted by counsel from Mr. Justice Field, in Goodyear Rubber Manufacturing Co. v. Goodyear Rubber Co., 128 U. S. 604, the illegal act is made to consist only in a representation, false in fact, which is injurious to the plaintiff. “The case at bar," says that judge, “cannot besustained as one to restrain unfair trade. Relief in such cases is granted only where the defendant, by his marks, signs, labels or in other ways represents to the public that the goods sold by him arc those manufactured or produced by plaintiff, thus palming off his goods for those of a different manufacturer, to-the injury of the plaintiff."

In the subsequent case of Singer Manufacturing Co. v. June Manufacturing Co., 163 U. S. 169, the defendant no doubt honestly thought that he was acting within his right, but he-was restrained from using a name that had become common property in such a way as to deceive. The language of Mr. Justice White is: “He cannot resort to any artifice or do any act calculated to mislead the public," &e. And, again: “The use of such name bjr another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications."

Another case is Rogers et al. v. Rogers et al., 53 Conn. 121. As I read that case it stands on all fours with such cases as Turton v. Turton, 42 Ch. Div. 128. The superior court by their finding of fact, which bound tire court of review, negatived the intent to defraud, and also negatived the allegation that the defendant’s stamp was not only calculated to mislead and deceive, but that it did mislead and deceive purchasers and induce them to buy defendant’s goods, supposing them to beof plaintiff’s manufacture.

The court above, being bound by this finding, •which was one of fact, it appeared that a representation' false in fact and injurious to plaintiff had not been made. The only point decided was that a man might use his own name, if he used it with proper distinguishing marks. Thus regarded, the case is in line with the latest decisions. The same comment may be made upon the subsequent case of William Rogers Manufacturing Co. v. Simpson, 54 Conn. 527.

In the light of the above adjudications, I will now recur to the facts. William Henry Rogers, as I have said, was a machinist by trade, who had, up to 1898, been engaged in the bicycle business. He was not familiar with electro-plating, and he had had no experience in manufacturing or selling silver plate. He had only qualified himself to enter the business by reading catalogues, and, among others, the Rogers’ catalogues; by talking with salesmen at the counters of department and other stores, and with a jobber named Johnson. With this slender -qualification, he went to the Bristol Brass and Clock Company and contracted with them for spoons and forks, which were to be stamped with the name “Wm. II. Rogers Co.” He conducted the business in this way, and on a very small scale, for a year. 'Then the partnership having been dissolved, he did nothing more for several months. After that he entered into a written contract with the M. S. Benedict company, a responsible concern, with an extensive business of the same character. The terms of this ■contract, so far as shown (for the contract is not produced), are very significant. Rogers was, upon the order of the Benedict company, to order goods of the manufacturer, stamped “Wm. H. Rogers,” and the Benedict company was to purchase them from him for a price in excess of the price which he was to pay the manufacturer. The manufacturer was to ship the goods directly to the Benedict companjr, and so, in the result, Rogers had nothing whatever to do with them, except to order them and to accept the agreed price. This price, in the case of knives, was an advance of five cents per dozen over the manufacturer’s price. What it was in the case of forks and spoons, Rogers does not remember.

IJp to this time the “Wm. II. Rogers Corporation.” had not been formed. I shall stop to consider what, just before its formation, was Rogers’ position ? The law is that a man may carry on business under his own name; and may compete under that name with any other person engaged in the same or a similar business. The law favors competition and none the less because 'it may be carried on by a competitor bearing the same name. What it does, and all that it does, is to prevent the passing off by one man of his goods as the goods of someone else, to the injury of the latter. Had Rogers been seeking to so pass off his goods ? It is evident that he had been,- and that, at this period at least, he was seeking to appropriate to himself the reputation and trade of another. He did-not give to his firm the name “Rogers & Hubbard,” although Hubbard had furnished all the capital; he had called it the “Wm. H. Rogers Co.” The name adopted was strikingly like the name that he knew — that he had seen in the Rogers catalogue — “Wm. Rogers Manufacturing Co.” Although counsel’s attention was directed to the subject, for he took the trouble to prove that on one occasion, several years ago, Rogers had signed his name “Wm. H. Rogers” in a savings bank registry, he did not prove how he had on other occasions designated or subscribed himself, or how he had styled himself in the bicycle business. I must therefore assume that he did not employ the abbreviation “Wm.” Then why did he adopt it at this time if not to suggest to the public that his business wras in some wray connected with that of the New England manufacturers, who had always used that abbreviation ; and why, too, did he adopt a partnership name so unusual in itself (Wm. II. Rogers Co., not Wm. IT. Rogers & Co.) if not to simulate the name of the New England company?

Is it not certain that he must have thought that the name in this form would ol; itself, and from the very beginning, have a pecuniary value ? To whom did that value belong ? Certainly not to himself. So much for his original intent. When the partnership was dissolved, he stamped upon his ware the name “Wm. II. Rogers,” without any accompanying mark. Why did he still retain the abbreviation “Wm. ?” Why did he, at this stage of his business, stamp his name upon plated ware at all? It is proved that the name stamped upon forks, spoons and knives does not necessarily indicate the manufacturer. It may be that of the jobber or retail dealer. But was he really at that time either ? Is it not plain that the contract between himself and the Benedict company was, on the face of it, a mere contrivance to appropriate for the benefit of the Benedict company and of Rogers himself some of the reputation and profit which 'properly belonged to another? The Benedict company was a concern manufacturing on its own account. It could have stamped its own name upon the goods which it manufactured, or had manufactured for it; but it seems to .have thought that it might prove profitable to sell plated ware under the name “Rogers.” To call the transaction, as it is disclosed by the proofs, a. genuine sale by Rogers, in the character of a jobber, to the Benedict company, in the character of a retail dealer, is absurd. The name stamped, regarded as the name of AVilliam H. Rogers, neither was nor could have been, at that time, a guarantee of excellence or of anything else which the purchasing public would consider valuable. He had no skill, no reputation in the market as a -dealer in plated ware, no financial responsibility. And yet the Benedict company were willing to pay him five cents per dozen for knives stamped with his name. This pajanent could, in the nature of things, have only represented the value of the name and reputation of the predecessors of complainant. Rogers swears very positively that the Benedict company was the out-and-out purchaser of his goods and not the selling agent. If this were so, then they practiced another imposition upon the public, for the Benedict catalogues, with which Rogers was familiar, contained the representation that the Benedict company was Rogers’ agent.

Aside, then, from the rule requiring distinguishing marks, I think the conclusion is inevitable that up to, or nearly up to, the time of the formation of the Rogers corporation, Rogers was using the name to gain for himself a profit which belonged to another. He was consciously seeking to pass off his goods as the goods of his competitor.

After lie formed the William H. Rogers corporation he was acting under advice of counsel, and he, no doubt, thought that he was within his legal rights. But, as I have endeavored to show, that of itself will not legalize his acts. As one of the original subscribers to the corporate stock he took forty-eight shares. Mrs. Babcock took thirty shares and Mr. Hubbard took five shares. By this time, at least, it must have been clear that objection would be made to the use of the words “Wm. Rogers.” The two suits brought against those with whom lie dealt made that plain. The whole vocabulary of names lay open to them. They might have taken a name descriptive of the place of manufacture; of the kind of goods they expected to deal in; of the principal persons connected with the corporation; they might have taken a fancy name. What they did was to take the name “Wm. H. Rogers Corporation.” They did it, as they say, because William H. Rogers was to become its president and manager and was to transfer to it his business and good will. Now, as far as the stock was concerned, it was insignificant in amount; and as to the good will, there was none except that acquired by fraud. His name itself could have added little or nothing to the success of the enterprise except in -so far as it suggested the name and reputation of his competitor.

I have already said that a man is not always debarred from giving his own name to a .corporation, where it happens to be the name of a competitor, if he does it for some good reason and in such a way as not to mislead the public. His name may be valuable to him because it suggests his skill, or his financial ability^, or something else which belongs to him. That was the position of W. H. Baker, in the case already cited. If it only suggests the skill or ability of another, its adoption as a corporate name is a species of deception — a false representation— which the law will not countenance. In this case there was no valid reason why the individual name should have been adopted as the corporate name. It was not only embodied in that name, but embodied in the most 'objectionable form — with “William” abbreviated. Eor this, as I have said, so far as the evidence shows, there was no excuse. The corporators say that they used every effort to distinguish the name which they adopted from the trade name of complainant. In an undertaking apparently so easy, one would have expected a greater degree of success. If they regarded the word “Rogers” as essential, they might have called the -company the Rogers-Hubbard Company, of Plainfield, Hew Jersey, or even the W. Henry Rogers Company, of Plainfield, Hew Jersey. These names would have been, at least to a degree, distinguishing; but in view of the repeated litigations over the word, they might even then have expected litigation. William Rogers v. Rogers & Spurr Manufacturing Co., 11 Fed. Rep. 495; R. W. Rogers Co. v. William Rogers Manufacturing Co., 70 Fed. Rep. 1017; International Silver Co. v. William Rogers Co., 113 Fed. Rep. 526; William G. Rogers Co. v. International Silver Co., 118 Fed. Rep. 133. If the name did not, in itself, in their estimation, possess great value, I cannot imagine why they took it, knowing, as they must have known, that their right to it would be disputed.

But they say, further: “We intended, when we took it, to adopt such precautions in its use as would make it plain that we were not the complainant, and that our goods were not their goods.” Why take it at all? Why first create the difficulty and then seek to minimize its effect ? But have they succeeded ?

They announced that they were “not in the trust.” They mentioned the place of their business, “Plainfield,” on their boxes, wrappers, placards and letter-heads. They used, in connection with the name “Wm. H. Rogers” a trade mark consisting of a red seal with the letter “R” in white, in the middle of it, and this trade mark (except the color) they stamped on their wares. These precautions, it would seem from the evidence, have been sufficient to distinguish their goods from those of complainant as far as jobbers, and possibly as far as retail dealers are concerned, and so, if there were no other class of persons that might be misled, I would say that notwithstanding the imitation of the name the complainant was not entitled to an injunction — not because the defendant had not acted unwarrantably, but because, taking all defendant’s statements together, no false representation was proven. The statements put out by them, 'taken as a whole, sufficiently distinguished their ware from that of complainant.

But the ease is different when we come to the ultimate purchaser. It was shown that persons of this class-would often see nothing but the knives, forks and spoons. The only thing stamped or etched on these is “Wm. H. Rogers,” followed by a circle enclosing the letter “R,” impressed with more or less distinctness. To -such a purchaser the characteristic words would be “William Rogers,” and these words might, and in the ordinary course of dealing would, come to him without explanation. The law is well settled that if the manufacturer puts it in the power of the retailer to misrepresent, he is answerable for the probable consequences.

Counsel contended that any fraudulent intent on the part off the defendant was negatived by what they are proved to have thus done. Suppose it was. The gravamen of the action is not fraudulent intent, but false representation. The suggestio falsi is to be found in the name stamped upon the ware. It is rendered harmless as to jobbers and dealers, by reason of other information furnished to them; but if this information does not reach the ultimate consumer, then, as to him, the suggestio falsi has its full effect.

But it is argued, further, that the trade mark — a seal enclosing the letter “R” — is always stamped upon the ware itself, after the name. I do not think that this and the letter “H” amount to more than unimportant variations. “Similarity, not identity,” said Justice Bradley, in Celluloid Company v. Cellonite Company, 32 Fed. Rep. 94, “is the usual recourse, where one party seeks to benefit himself by the good name of another.” And see Hendriks v. Montagu, 17 Ch. Div. 638, where the corporate names in controversy were “Universal Life Assurance Society” and ^Universe Life Assurance Association,” and North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co., L. R. App. Cas. 83 (1899).

The William IT. Rogers Corporation should be enjoined from advertising its wares in its corporate name, or in the name “Wm. H. Rogers,” or in any name of which the word “Rogers,” in connection with the word “William” (abbreviated or unabbreviated) is part, and from stamping, selling or otherwise disposing of its wares in those names, or any of them.

Whether the corporation should be enjoined from using the word “Rogers” is a different question. The evidence shows that the predecessors of complainant did business under the names “Wm. Rogers,” “Wm. Rogers & Son,” “Rogers & Bros.,” “Wm. Rogers Manufacturing Company,” “Rogers & Hamilton,” “William Rogers, Jr.” They competed with each other and used various marks to distinguish their wares — an anchor, a star, an eagle, a scimitar. They were all Hew England concerns. One of them (Rogers & Hamilton) had no connection with the original Rogers Brothers. There is, also, at least one other of that name who competes, in some degree, with complainant, and who is doing so, as far as has been adjudicated, rightfully. Rogers v. William Rogers Manufacturing Co., 70 Fed. Rep. 1019; 84 Fed. Rep. 639; 95 Fed. Rep. 1007.

How, as I have said, the court, in this class of cases, interferes only to the extent of preventing the defendant company from passing off its goods as complainant’s goods. In view of the number of trade names which contain the word “Rogers;” in view of the fact that purchasers must discriminate in buying, for the trade name points, not only to different factories and manufacturers, but to goods of differing grades; in view of the fact that W.‘ H. Rogers now stands in a position different from that which he formerly occupied, he having acquired some degree of skill and experience in the business or in some of its branches — in view of all these facts, it would seem that the corporation should not be enjoined from using the name “Rogers,” its president, if made distinctive, whenever used, by the addition “W. Henry,” and “Plainfield, H. J.,” in connection with its trade mark. I think that the rationale of the decision in Baker v. Baker, 115 Fed. Rep. 297, warrants this conclusion; and the decision in William Rogers Manufacturing Co. v. Simpson, 54 Conn. 527, not only warrants it (though I do not agree to some of the dicta contained in the opinion), but, on a somewhat different state of facts, goes further than I am disposed to .go on the facts, of this case.

If it he suggested that the restrictions imposed by a writ in this form will be somewhat severe, it will be remembered that I am not considering the rights of W. H. Rogers as an individual, he being engaged in no business on his own account, and no relief being sought against him, but the rights of a corporation which has, without necessity and willfully, taken a name calculated to deceive the public and to injure the plaintiff.