author: Robertson, J. Hoffman, J.

text:
    J. B., A. and S. Allen v. Frederick and Philip Bareda.
    1. Where the complaint in an action on a charter party avers, and the answer admits, that the master of the vessel by a charter party chartered her to the Republic of Peru; and the charter party itself purports to be made between said master on one part, and “ F. Bareda and Brother, (the defendants,) acting agents for the Peruvian Government, on the other part;” the defendants are not personally liable to pay the freight due under the charter party, notwithstanding they were, as such agents, consignees of the cargo; and had in their hands moneys and means of the republic, provided for the payment of the charter moneys.
    2. The Republic of Peru is the charterer of the vessel and alone liable for the freight, in so far as liability to pay it rests on the provisions of the charter party and the obligations which it imposes.
    3. In such case where the freight stipulated in the charter party was $16 per ton, and an indorsement was subsequently made reciting that such vessel being within a specified treaty with the Government of U. S. A., the freight should be $20 per ton; if in fact the vessel was not embraced within the provisions of such treaty, the indorsement is without consideration and void, and such agents having paid the $16 per ton, are not further liable. (Per Robertson. J.)
    (Before Hoffman, Pierrefont and Robertson, J. J.)
    Heard June 4,
    decided June 30, 1860.
    This case comes before the court on questions of law arising at the trial, and there ordered to be first heard at the general term. The action was tried February 7, 1860, before Mr. Justice Woodruff and a jury, when the complaint was dismissed.
    The substance of the complaint is, that in February, 1852, one Joseph Shotwell was the charterer from the owners of the barque Golden Era, then lying in the port of New York, and about to sail on a voyage to Panama. That by instructions from Shotwell, the captain of the vessel proceeded with her to Callao, in the Republic of Peru, “ and then and there entered into a charter party with the government of said republic by which he chartered the vessel to the said republic, to bring a cargo of guano to the United States, at the price or sum of twenty dollars for every ton so brought.” (The answer admits the allegations above quoted, except that it alleges the charter price to be sixteen dollars per ton.) That the barque took on board a cargo of guano, and arrived with it at New York, her port of destination, about the 30th of April, 1853, and delivered it to the defendants, who then held the moneys provided for the payment of said charter moneys, but paid only sixteen dollars per ton, and retained of the moneys so due to Shotwell, four dollars per ton, which he had demanded of them and they had refused to pay, and which amounted to $2,431.98. That Shotwell had assigned the cause of action thus arising to the plaintiffs, who claimed to recover the sum of $2,431.98, and interest from June 1, 1853.
    The charter party between Shotwell and the owners of the Golden Era, dated February 21,1852, was produced and read in evidence. There was also produced and read in evidence, the charter party on which this suit is brought. It purports to be made “ between E. P. Sleeper, master, * " * on the- one part, and F. Bareda and Brother, acting agents for the Peruvian government, on the other part.” It stipulates that “ freight be paid at the rate of sixteen dollars in full, per ton of twenty hundred net weight, of guano, custom house weight.”
    There was an indorsement on the charter party without date or signature, as follows, viz :
    “ It is understood that the rate of freight shall be twenty dollars instead of sixteen dollars, this vessel being included in the stipulations agreed to between the Peruvian Minister at Washington, and the Government of the United States.”
    A stipulation signed by the defendants’ attorney, was then read, admitting that the last said charter party “is the one referred to in the complaint, and that the signatures thereto are the genuine signatures of Alsop & Co., and of the defendants; and that the indorsements thereon are made by or in behalf of the defendants.”
    “ The defendants’ counsel thereupon admitted that the quantity of guano averred in the complaint, was delivered to and received by the defendants at the time and in the manner therein alleged.”

      Samuel Churchman, a witness for the plaintiff, testified, that he saw the defendant, F. Bareda, several times; he acknowledged the arrival of the guano; called on him before and after the guano was delivered to the defendants; the "witness claimed from the defendants $20 per ton for it; they said there “ was some difficulty with this and another ship about the extra $4 ; that the captain was to receive the $16, and that the other four was to be left open. The defendant Frederick Bareda said, that the intention of the government clearly was, that the owners should receive the twenty dollars, and that they were entitled to it to make the government clear of the Lobos Islands charters, but that the defendants would not pay it then, as it might be subject to some outside claim. * * .* I received the sixteen dollars a ton—the defendants paid it.” That the witness did business in Shotwell’s name; Shotwell had no interest in the charter party ; it was wholly in the witness.
    The assignment of the cause of action from Shotwell to the plaintiffs, was proved and read in evidence. The printed case contains the pleadings, the two charter parties, the foregoing' stipulation and admission, and the testimony of Churchman, and the assignment by Shotwell to the plaintiff, but no other testimony.
    When the testimony was closed, “ the defendants’ counsel moved the court that the plaintiffs’ complaint be dismissed on the ground that the charter party was a public transaction with the Government of Peru, and that the defendants had acted in the capacity of private bankers and government agents.
    “And thereupon the court granted the defendants’ motion to dismiss the plaintiffs’ complaint j to which ruling the plaintiffs’ counsel excepted, and the said justice directed the said exception to be heard in the first instance, at the general term, and the judgment in the meantime suspended.”

      James W. Gerard, for' Plaintiffs.
    I. In any aspect of the case, and on the supposition that the Baredas were not parties to the charter party; from the admissions in the answer and the evidence, they are liable. They received the guano, and by the admissions in their answer, funds were placed in their hands, and appropriated by the Peruvian government to pay the twenty dollars a ton.
    They were, therefore, trustees for the owners, and they held those funds in trust to pay over to, the owners as a specific appropriation of funds. An action at law, even under the old system, would lie against the Baredas on an implied assumpsit; much more under the present combined system of law and equity. (Weston v. Barker, 12 John. 276 ; Paley on Agency, p. 394; Schemerhorn v. Vanderheyden, 1 J. R. 139; Shear v. The Overseers of Hillsdale, 13 J. R. 496 ; Judson v. Gray, 17 How. Pr. R. 289; Dunlap’s Paley on Agency, page 374.)
    II. The Baredas claimed and received the cargo under the charter party, knowing the amount of freight and charges on it, and that those charges of freight were a lien. They, therefore took the cargo in one of these fpur capacities :—
    1st. As consignees; or,
    2d. As assignees of the consignees; or,
    3d. As the agents or intermediate consignees for the benefit of the ultimate consignees ; or,
    4th. With the preconceived design, to get "possession of the cargo, and avoid the lien for freight.
    They received the guano as consignees in fact, and are liable for the freight in law. (Abbott on Shipping, pp. 421 to 424 [margin], and the authorities of 18 Barb. 586, and 5 Denio, 172, infra.)

    ■ If they received the guano as assignees of the consignees, they are liable. (Abbott, supra.)

    If they received the guano as agents or intermediate consignees for the benefit of ultimate consignees, the Peruvian government, or otherwise, they are liable under Dunlap’s Paley on Agency, 373, 374; Canfield v. Northern R. R. Co., (18 Barb. 586;) Hinsdell v. Weed, (5 Denio, 172.)
    The Baredas. never pretended to avoid their liability by getting behind the principle that you cannot sue a government, until the trial. They do not even set it up in their answer. When Churchman called on them before the cargo was delivered, and again, before they had sold it, after it was delivered, and while he could yet have enforced the lien for freight against the guano itself, the Baredas set up no such pretext; on the contrary, made another and sole objection, to wit, that this four dollars was claimed by another party. We, therefore, charge that they, by fraud, procured a discharge of the lien for freight, and are in that aspect personally liable. (Bigelow v. Heaton, 6 Hill, 43; 4 Denio, 496.)
    III. The charter is to the Baredas and not to the Peruvian government. It is signed by the defendants with their individual names, without any qualification of agency. The words “ acting agents for the Peruvian government,” in the premises of the charter, are mere words of descriptio persones. They were the actors, and they are the persons meant as charterers, wherever that term is used in the charter party. (Dunlap’s Paley on Agency, pages 381 to 385, and cases in the notes.)
    IV. If the charter was to the Peruvian government, and the Baredas are to be considered only as agents, yet, by the express covenants of the charter party signed by them with their simple mercantile signature, the Baredas expressly are declared to be the paymasters of the freight on delivery, they having the option to pay either in cash or bills. (Same references as in the last point to Paley on Agency.)
    V. At all events, and under any construction of the charter party, under the circumstances, it should have been left to the jury to say to whom it was intended to give credit for the freight, due on the delivery of the merchandise. No sane jury would find that credit was intended to be given on a cash transaction, to a government of the Pacific Ocean, against whom they had no means of enforcing their demand. (Paley on Agency, 3l"7, note and cases cited in the note.)
    VI. The owners being perfectly remediless for their claim, which was clearly a cask transaction payable in New York, by the Baredas, on delivery to them, if they cannot recover it from the Baredas, the court will give such a construction to the charter as will compensate the owners for their freight, and prevent a gross fraud committed upon them, and the court will bear in mind that the principal, to whom the defendants turn over the plaintiffs for their freight money, is not the government of our country, but a foreign government. The cases where a creditor is supposed to give credit to a government, and not to its agent, do not apply to a foreign government. (Paley on Agency, 392.)

      D. D. Lord and Daniel Lord, for Defendants.
    I. The allegation of the complaint admitted by the answer is, that the charter party for the breach of which the action was brought, was with the Republic of Peru.
    The indorsement on the charter was an act of alteration by the act of that government. The charter itself spoke of the defendants “ as agents of the Government of Peru.” And the subsequent conversation sworn to by Churchman, showed that the whole contract was a government affair.
    II. The funds of the government cannot, on reasons of public law, be attached, nor claims thereupon asserted in a court of this country. (See De Haber v. Queen of Portugal, l7 Adol. and El. N. S. 212 ; and the case of the Prince Frederick, there stated, at page 212.)
    III. The contract being by the defendants as agents of the Republic of Peru, they are not personally liable. (See Story on Agency, ch. 11, § 302, &c.; Unwin v. Wolseley, 1 Term. R. 674; Jones v. La Tombe, 3 Dall. R. 384; Brown v. Austin, 1 Mass. R. 215; Dawes v. Jackson, 9 Mass. R. 490; Hodgson v. Dexter, 1 Cranch. R. 345; Walker v. Swartwout, 12 Johns. R. 448; Belknap v. Reinhart, 2 Wend. R. 375.)

      The mode of the signature does not determine the. liability, but the face and object of the contract, as one for the government by its agent. (See 1 Term. R. 614, and 1 Cranch. 363 ; Story on Agency, § 303.)
    • Therefore, the judgment should be affirmed, with costs.
   Robertson, J.

—Whatever views ought to be entertained of the other questions discussed in the argument of this case, there appears to be a fatal obstacle to the plaintiffs’ right to. recover. The claim is made for an increased rate of freight per ton of the article transported, under and by virtue of an indorsement on the original charter party, which was completely executed, and allowed only sixteen dollars per ton. That indorsement is as follows :

“ It is understood that the rate of freight shall be twenty dollars instead of sixteen dollars, this vessel being included in the stipulations agreed to between the Peruvian Minister at Washington and the Government of the United States.”

By the terms of that treaty, the Peruvian Minister agreed that the American vessels' which left the United States from the 5th of June to 25th of August, then past, in 1852, chartered for loading guano at the Lobos Islands, should be chartered ón account of the Government of Peru, for loading at the Chincha Islands, at the rate of twenty dollars per ton; the owners or charterers indorsing the charter parties to the consignees, or agents of Peru, in the United States. Also, that vessels which might have been chartered in the ports of the Pacific, with the same object, by virtue of orders sent from the United States before the 25th day of August, 1852, and which could not be countermanded afterwards, would also be chartered at the same rate; provided the charter parties should be presented and indorsed to the said agents of' Peru, in the United States, before the first day of January, 1853. The vessel in-question was not mentioned in the list annexed to such treaty. She left the United States in February, 1852; was not chartered for loading guano at the Lobos Islands ; nor when chartered under the charter party in question, was she under charter to any one. There was, therefore, no consideration for the promise indorsed on the charter party; that which, was mentioned was untrue, and there never could have been any consideration for such promise, if it were the contract of the defendants. For this reason alone, the complaint ought to have been dismissed.

Judgment must therefore be given for the defendants, dismissing the complaint with costs.

Hoffman, J.

—The first question is, between whom was the contract contained in the charter party made; who were to perform its reciprocal obligations ? This question is to be considered in the first place, as of the time it was entered into, with the aid of any extrinsic circumstances proper to be regarded in giving it a construction.

That a sovereign state may, in its sovereign character, enter into contracts with its own subjects, or those of other countries, which will be enforced in its favor in the tribunals of either, is an undeniable proposition. (The Republic of Mexico v. Arangoiz, 11 How. Pr. Rep. 2; 5 Duer, 634; The King v. Machado, 1 Bligh. N. S. 60, and the cases cited.)

That there is no co-relative subjection of such sovereign state to the coercion of courts of justice, for enforcing such contract’s, is a position no less clear. (Wadsworth v. The Queen of Spain, 17 Q. B. Rep. 171; De Haber v. The Queen of Portugal, Ibid.; The Duke of Brunswick v. The King of Hanover, 6 Beavan, 1 and 2; House of Lords, case 1; Locke on Attachments, p. 7.) In the first cited case, certain persons had been summoned as garnishees, alleged to have property of the Queen of Spain in their hands, on the ground of a debt for interest on bonds entered into by or on her behalf, by the Queen Regent, for her daughter, the Queen of Spain. It was held that a foreign sovereign was not liable on contracts made in a sovereign capacity. He was the representative of the nation of which he was the head, and no English court could entertain an action against him for anything done, or omitted to be done, in his public capacity as such representative. As the court had no jurisdiction over the person, an attachment of his property, in the hands of another, could not he sustained.

Lord Campbell said: “To cite a foreign potentate in a municipal court, for any complaint against him in his public capacity, is contrary to the law of nations, and an insult which he is entitled to resent.”

A party, then, who explicitly and solely contracts with a sovereign power, contracts upon the basis of there being no other appeal open to him for its acts or omissions butr> its own sense of justice and legal obligation. It may not be assumed that this dependence is less to be regarded, in interpreting his contracts, than the redress through tribunals of justice, afforded to him in other cases.

In examining the charter party in the present case, and with the aid of known public and historical facts, which both counsel have made use of, we find :

That the Republic of Peru did engage as a trader in the shipment of guano from the islands owned by it, and for its own emolument. It placed itself, and it was competent to place itself, in the position of an individual merchant and contractor. It was both legal and consistent for it to enter into a charter party, in which the republic should alone be looked to for the performance of the obligations of a charterer. It is equally clear, that, if it could contract in any other mode, yet, for authentication and proof, the ordinary and natural mode would be, to bind itself through some agency. It follows, that the liability of an. agent executing the contract, is to be deduced from the instrument and circumstances. Whether there is any legal presumption as to such liability, and what that is, is a point hereafter noticed. I am examining the case, at present, on the supposition that there is none ; and that it stands as if the charter party was between individuals. The instrument in question is “ between E. D. Sleeper, master of the bark Golden Era, now in the port of Callao, on the one part; and E. Bareda & Brother, acting agents of the Peruvian government, on the other part.” The vessel is to proceed to Chincha Islands, calling on her way at Pisco, to obtain the necessary pass to load, which shall ’ho given by the charterer’s agents, free of expense. We may here notice, that the government could alone give the pass. Its agents are there referred to. The government is thus recognized as the charterers; at least this clause favors such a view more than any other.

The charterers’ agents are to give notice when the vessel is to receive no more cargo. The charterers are to provide twine. The vessel is to" proceed to Hampton Roads for orders from Messrs. Bareda & Bro., to discharge in Baltimore or in New York, there to deliver the cargo; the consignee having the liberty of naming the dock or wharf at which the cargo is to be landed.

The freight to be paid, as under, at the rate of sixteen dollars, in full, per ton of 20 cwt., net weight, of guano; custom house weight.”

There is then a clause, to the effect that the master was to be supplied, in the Pacific, with a sum not exceeding " , which is to be in part payment of freight. Should the charterers, or their agents, advance any further sum, for repairs, stores, &c., it should be considered in part payment of freight; “ and the balance to be paid on the right delivery of the cargo, by approved bills, at months date, or in cash, at the option of the consignee.”

“ The ship to be consigned, in the United States, to F. Bareda & Brother, who will charge two and a half per cent, on the amount of the freight, for managing the ship’s business.”

The signature was “ F. Bareda & Brother.” The indorsement, it is admitted, was made by or on behalf of the defendants. It is as follows : “It is understood that the rate of freight shall be twenty dollars instead of sixteen dollars, this vessel being included in the stipulations- agreed to between the Peruvian Minister, at Washington, and the Government of the United States.”

Its date is not given. The vessel was in New York in February, 1852. When the charter party was made, she was at Callao. The date of this is not given. She was at the Chincha Islands on the 12th of November, 1852, and was there also on the 10th of December. It is stated in the answer, that Philip Bareda, who alone .resided at Lima, Peru, made the indorsement of the twenty dollars. The vessel arrived at Baltimore, about the 30th of April, 1853. On her outward voyage, she was to go to Panama.

To have been supposed to be within the treaty stipulations,. the vessel must 'have left the United States between the 5th of June and 25th of August, 1852. Time must be allowed then for her passage after th,e first date, and thus the indorsement could not have been made earlier than September. The distance from Callao to the Islands being not over a few days sail, it is far more probable that it was. considerably later.

Continuing the examination of the provisions of the charter party, we find that the party, directly to receive the benefit of the services of the ship, was the Eepublic. The party" receiving the consideration in the treaty stipu- ' lations with the United States, which induced the increase of the charter money, was the Eepublic. All the consideration of the engagements in favor of the owners of the vessel, moved to the Eepublic; none, except the prospect of commissions, to the defendants.

It is -also" td be noticed, that the complaint explicitly avers, that the vessel proceeded to Callao, in the Eepublic of Peru, and there entered into a charter party with the government of said' republic, to bring a cargo of guano to the United States, at the price or sum of $20 per every ton of guano so to be brought. The answer admits this, except as to the rate, which it avers was sixteen dollars at first, and proceeds to state the reason of the increase.

Suppose the vessel had been duly offered at the Islands fit to receive .the cargo, and none had been ready; or the charterers had found it expedient to break the contract, could an action have been sustained against the defend ants ? I think not.

I shall first advert to some authorities bearing upon the question, on the theory, that the fact of the agency of the defendants being for a government, makes no difference in the rule to be applied.

In Lennard v. Robinson, (32 Eng. L. and Eq. Rep. 127, Queen's Bench, 1855,) the action was on a charter party to recover demurrage for the detention of the ship. The charter party was, as to its material portions, as follows: “London, May 4, 1854. It is this day mutually agreed, between Mr. John M. Lennard, owner of the goods, ship, &c., now at Genoa, and Messrs. Robinson and Fleming, of London, merchants, that the said ship, &c., shall sail to Torrevieja, and there load from the factors of the said merchants, a full cargo of salt; cargo to be brought to and taken from along side, at merchants’ risk and expense, which the said merchants hereby bind themselves to ship; and being so loaded, shall proceed to Memel and deliver the same on being paid freight 28s. per ton.” Signed, “by authority of and as agents for M. A. H. Schwedersky, of Memel. Pro Robinson and Fleming.

“W. F. MALCOLM, “JOHN M. LENNARD.”

Lord Campbell said : “ Before the signature to the contract, there is not the slightest intimation that the defendants are not the principals. They appear to be the contracting parties, and they undertake to load the cargo, and to do all that was to be done.” Coleridge, J., observed : “ Many cases have decided, that it is not sufficient to free the parties to a contract from personal liability; that they state in the contract, that they enter into it as agents for another person; but that the whole instrument is to be looked at in order to see whether the contract is made by them as principals or as agents.” He then criticises the stipulations, and concludes they were strong to show that the contract was to bind them personally.

So in Tanner v. Christian, (29 Eng. L. and Eq. Rep. 103, 4 Ellis and Black. 591,) the agreement was between C. for and in behalf of N. of the first part, and T. of the second part; C., On behalf of N., agreed to let the premises, &c.. T. paying rent to C. for the use of N. ; C. signed his own name. It was held, that C. was personally bound. One test was to see, who, by the terms of the contract, was to act in the performance of it. C. was to do all that was to be done.

In Cooke v. Wilson, (37 Eng. L. and Eq. Rep. 361,) the charter party was, “ It is this day mutually agreed, between Messrs. J. & R. Wilson, of Liverpool, owners of the ship Jessica, of the first part, and J. S. Cooke, of London, on behalf of the Geelong and Melbourne Bailway company, of the other part, that the ship should take onboard, <&c., and deliver the goods, &c., along side the pier of the Geelong, &o., company, in Corio. The rates of freight determined upon by the parties to this agreement, are as folloivs : one-third to be paid in London, and the remainder by the said company at the port of Geelong aforesaid.

“ (Signed) J. & B. WILSON,

“ SAMUEL JOHN COOKE. ”.

Crowder, J., said: “ Where a man has signed a contract, he must be taken to be the contracting party, unless on the writing it appears distinctly that he was only acting as an agent. It is said, there is nothing here to show that he was anything but an agent. There is nothing in the agreement to show that he was contracting only on behalf of another, and not himself.” The rule is stated by Cress-well, Justice, in language slightly stronger; but it seems to me that it is laid down by Crowder, with accuracy.

Parker v. Winlow, (7 Ellis and Black. 942,).was the case of an action for demurrage. The charter party was : “It is this day mutually agreed between captain W. Parker, of the good ship Celerity, himself master, and G. M. Winlow, agent of E. Winlow & Son, merchants, that the said ship shall load, &c., and deliver at &c., on being paid freight. The ship to be addressed to E. Winlow & Son, of Devonport.” (Signed) G. W. WINLOW.

The defendant, G. W. Winlow, was not a member of the firm.

Lord Campbell said: The defendant had personally contracted. He had used words to show that he had so contracted. One could pledge Ms personal responsibility, though agent for another; and the contracting parties here were the plaintiff and defendant. Crompton, J. said: A man, though an agent, may well intend to bind himself personally; and he does so if he contracts without restrictive words to show that he does not mean to do so.

Se also the cases in our own courts cited, Moss v. Livingston, (4 Coms. 208,) and De Witt v. Walton, (5 Selden, 571.) In these, the authority to bind the principal, was doubtful, or had not been exercised in a manner showing an intent to bind him; and the phrase “ agent,” was held as a descriptio persona only.

From these cases, I conclude, that it would be difficult to hold these defendants liable, if the' case is to rest upon precisely the same principles as if it were between individuals. The agency is apparent on the face of the contract, and the principal is known.

' (2.) But if this view of the case, on the supposition of its being a contract between individuals, should be doubtful, yet it seems to me the . fact of the defendants being agents of a government, and so described, is decisive. The rule upon this subject, is thus stated by Chancellor Kent: “ There is a distinction in the books between public and private agents on the point of personal responsibility. If an agent, on behalf of a government, makes a contract and describes himself as such, he is not bound personally, even though the terms of the contract be such as might, in the case of a private nature, involve him in a personal obligation. The reason of the distinction is, that it is not to be presumed that a public agent meant to bind himself individually for the government. And the party who deals with him in that character, is justly supposed to rely upon the good faith and undoubted ability of the government. But the agent, on behalf of the public, may bind himself by express engagement; and the distinction terminates in a question of evidence. The inquiry in all cases is, to whom was the credit, in the contemplation of the parties, intended to be given.” (Comm. vol. 2, p. 632.)

While the inquiry to whom the credit was meant to he given is open, to be tested by the evidence, (mainly of the contract itself,) it is yet clear, upon the cases, that there is a decided presumption that the public agent is not personally liable, and plain testimony is requisite to fix the obligation upon him.

A reference to some of the leading authorities, will establish this. Thus, in Macbeath v. Haldimand, (1 T. R. 172,) the general rule was declared, and it was held, that a commander was not liable for contracts made by him on behalf of his government. And in Unwin v. Wolseley, (Ibid. 674,) the same rule was applied where, the defendant signed a charter party under seal, as commander of his majesty’s ship Magnanime, on account of his majesty. In Hodgson v. Dexter, (1 Cranch. 345,) the lease was between Joseph Hodgson, of the one part, and Samuel Dexter, secretary of war, of the second part. The former leased certain premises to the latter by the name of Samuel Dexter, and his successors. The latter covenanted for himself and his successors, to keep the premises in good repair, and surrender them at the end of the term. The court held that the defendant was not bound. The subject was fully discussed in the case of Macbeath v. Haldimand, and the court considers the principles laid down in that case as consonant to policy, justice and law.

In Parks v. Ross, (11 How. U. S. Rep. 362,) the court say “it is an established rule of law, that an agent, who contracts in the name of his principal, is not liable to arrest on such a contract, much less a public officer acting for his government. As regards him; the rule is, that he is not responsible for any contract he may make in behalf of his government; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears, by satisfactory evidence of an absolute and unqualified engagement to be personally liable.”

The case of Gidley v. Lord Palmerston, (3 Brod. & Bing. 275,) is as strong a case of the application of this rule as can be found. It was held that assumpsit would not lie against the secretary at war by a retired clerk of the war office, entitled to a retired allowance, although the defendant had received the money applicable to such allowances. The money was received as money of the crown, and belonged to it. He could only be responsible to the crown, in his public capacity, fpr it.

(3.) It is next urged by the plaintiffs’ counsel, that the mere reception of the goods rendered the defendants personally liable for the freight. In the case of an ordinary bill of lading, it may be treated that such is the general rule. The clause directing the delivery to the consignee, he paying freight for the same, raises an implied contract to discharge such freight upon the acceptance of the goods. (Roberts v. Holt, 2 Shower, 432; Cock v. Taylor, 13 East. 399; Brouncker v. Scott, 4 Taunt. 1; Wilson v. Kymer, 1 M. & Sel. 157.)

I do not propose to enquire here how far Sanders v. Vanzeller, (4 Q. Bench Rep. 278,) has affected this proposition, and left the point not a clear inference of law, but matter of evidence only. It is not necessary in this case.

It is also well settled, that if the consignor is the owner of the goods, freight may be recovered .of him, when they have been delivered to the consignee without payment. (Tapley v. Martens, 8 T. Rep. 451; Shepherd v. DeBernales, 13 East. 565; Barker v. Havens, 17 John. Rep. 234.)

In the latter case, the master conveying goods under a usual bill of lading, delivered them to the consignees without receiving freight, which, however, he subsequently demanded, and payment was refused. The action was sustained against the consignor, he being the owner of the goods.

In the present case there is no such clause as is usually found in a bill of lading. The parties to whom the guano was to be delivered, were simply the agents of the republic to receive it. The master surrendered a lien upon the property by an unqualified delivery upon receiving sixteen dollars the ton. The omission of the important clause of a bill of lading referred to, the acknowledged character of the defendants as factors only of the republic, the negotiation with them in respect to the extra four dollars, in that capacity, seems to me to prevent the result of a personal liability by reason of the reception of the goods.

(4.) There remains one point which seems the most favorable to the plaintiffs of all that has been presented in support of their claim.

The complaint alleged that the charterers were to bring a cargo of guano to the United States, at the price or sum of $20 for every ton so brought; the performance of their contract, and their right to receive that sum; “ and that the defendants had in their hands, and under their control, the money and means provided for the payment of the aforesaid charter moneys, due and payable as aforesaid.”

The defendants answer, that the rate or price was sixteen dollars per ton, and that the ship was bound to. take the cargo at that rate or price. The answer then sets forth the indorsement as to $20 a ton, and the inducements leading to it; that the representation of the master of the vessel being within the treaty which led to the indorsement, was untrue, and the vessel was not so included; that the memorandum was therefore void; that they paid the master at the rate of sixteen dollars per ton, being the sum of $9,125.55, and took his receipt therefor.

They then admit that they had in their hands, previous to the said payments to the said master, certain funds of the said Peruvian government, provided for the payment of the said charter moneys, but no other funds.” They also say, that before notice of the claim of the plaintiffs, and after the settlement with the master, and in reliance thereupon, they refunded to the Peruvian government the funds so held by them. That they have not, and had not at the commencement of the action, any funds of the Peruvian government, that they are or were authorized to apply towards the payment of the plaintiff’s claim.

The evidence of Churchman tends to contradict the statement, that they had no notice of the claim until after the settlement with the master, and the answer must, I think, be considered as admitting, that the defendants had in hand the amount of the extra'four dollars per ton.

Thus understood, and with the evidence of Churchman, the case is fairly this: The defendants, as agents of the republic, had been provided with funds to meet the whole twenty dollars per ton, anticipated as the amount which would be legally payable. They had reason to suppose that the vessel was not entitled to the extra four dollars per ton, stipulated for in the indorsement. They refuse the payment, and after notice, refund the amount.

It appears to me, upon the whole of the circumstances attending this branch of the case, that the defendants, as public agents, were warranted in the course they have pursued, and were entitled to put the plaintiffs to the proof of the validity of their claim under the treaty, upon an application to the government of the republic. I do not think that these facts are sufficient to render them personally responsible, upon an implied undertaking to pay over the amount, when their own government could certainly make them liable, unless they should assume the office of proving, and succeed in proving, the right of the vessel to receive it.

The learned judge ordered the complaint to be dismissed, and upon an exception, ordered it to be heard at the general term, and judgment suspended.

I think the judgment should be for the defendants, dismissing the complaint with costs.

Pierrepont, J., concurred in dismissing the complaint.

Orderedaccordingly.


source: Caselaw Access Project

author: Robertson, J.

license: Public Domain

text:
    William S. Corwin, et al., Plaintiffs and Respondents v. William H. Daly, et al., Defendants and Appellants.
    1. No dealer in any commodity has a right to be protected by injunction in the exclusive use simply of a name by which .to designate it, which does not express its origin, ownership, or place of manufacture or sale, but merely its quality, kind, texture, composition, utility, destined -use or class of con-, sumers, or some other attribute which it has in common with other similar commodities.

      2. So held, in regard to the designation of gin by the term “ Club House,” it being established that such name had been long in use as designating a superior kind of gin used in such establishments.
    3. There may be an exclusive right in names expressing qualities or attributes where forming part of a device. peculiar to the manufacturer or vendor of . the article.'
    4. Whether the right of using a trade-mark, adopted by a dealer to indicate his own commodities, can he transferred to another so as to enable the latter to restrain a third person who has previously used the same trade-mark, from continuing its use, and whether the appropriation of such device as a trade-mark can be continued forever by constant assignments of it, Quere ?

    6. The employment of particular words or insignia, as a trade-mark, must be confined to the place where they are used, and its exportation to other places cannot interfere with the right acquired by others previously using them in such places.
    6. The case of Fetridge v. Merchant (4 Abb.), commented on and explained.
    (Before Piebrepont and Robertson, J. J.)
    Heard June 6,
    decided June 30, 1860.
    Appeal by John T. Daly and William H. Daly, the defendants, from a judgment at special term, substantially ordering the defendants to' desist from the use of the words “ Club House,” as a prefix to designate gin sold by them. The plaintiffs are William S. Corwin and Albert Webb. The facts, as they appeared on the trial, from the evidence, pleading’s and admissions, were as follows: Certain distillers manufactured, before the year 1857, at Rotterdam, in Holland, a certain kind of gin, for a Mr. William S. Campbell, to be imported by him into the United. States, and branded the casks containing it with the words “Club House,” and the letters W. S. C., which were the initials of his name. He, on its arrival in this country, drew it off into square glass flasks, holding- somewhat less than a quart, and having thereon a dark paper label with the words “ Club House Gin ” thereon, in gilded letters. These, flasks were put up in wooden boxes, painted green outside, with the words “Club House Gin,” and over them the letters W. S. C., which are also the initials of one of the' plaintiffs, in white paint. In 1851, Campbell transferred to the plaintiffs all his right to the gin, with the marks on the vessels containing it.
    The defendants also bottle gin, imported by them, in square flasks similar to those used by the plaintiffs, but having the words “ Club House, J. T. Daly,” blown on one of their shoulders, and a white paper label with the words “London Club House Gin, sole importer Wm. H. Daly,” printed in black' thereon. Such flasks are put up in unpainted wooden boxes, nearly of the same size as those used by the1 plaintiffs, with the words “ London Club House Gin ” painted in black on the outside.
    •The plaintiffs, after the defendants had the words before mentioned blown on their flasks, imitated it, by having the initials W. S. C., and the words “ Club House Gin,” blown on theirs. They also, after the defendants had exported their gin to California, with the marks and in the vessels already described, followed them, by exporting their gin, and there advertising it as the only true “ Club House Gin.”

    No insignia, devices or means are alleged in the complaint to have been used by the defendants, to mislead any one or injure the plaintiffs, other than those already stated.
    One witness testified that the words “ Club House,” as applied to articles of merchandize, had been used to designate those of superior quality, for twenty years, in Dublin and London. Another, that they had been applied to gin. And a third, that “ London Club ” had been applied to the same article for several years past, and all concurred in the opinion that it was a name for mere quality.
    No intent, by the defendants, to use the title “ Club House,” to induce any one to believe their gin the same as that of the plaintiffs, or the use of any other means for that purpose,, was contained in the finding of facts.
    The plaintiffs alleged in their complaint that, in Rotterdam, there existed associations called clubs, and that gin similar to that manufactured there and imported by them, was consumed in the houses occupied by such clubs, where the best articles of the kind were generally believed to be consumed.
    The evidence showed that the defendants only shipped their gin to and sold it in California, and that the plaintiff followed them into that market, after the former had sold it there with the title of Club House Gin.

      E. H. Owen, for Plaintiffs and Respondents.

      F. H. Upton, for Defendants and Appellants.
   Robertson, J.

The sole remedy sought by and allowed to the plaintiffs in this case, seems to have been the right of exclusive employment of the words “ Club House,” to designate their gin, and the defendants were not restrained from using any particular devices accompanying them, or any particular mode of printing, painting, branding or carving them, on any vessels containing them; or any labels or signs, indicating what the commodity was, or where sold. Their offence, if any, therefore, was in using such names to express the commodity sold. They were not prohibited from their use, as a penalty for selling their article as that of the plaintiffs’, because there was no evidence of any oral or written representation, or artifice, used by the defendants to pass their gin off as the plain-' tiffs’, except the title “Club House,” and the charge in the complaint, to that effect, is not sustained, except by that evidence. The color of the labels, and of the letters on them, on the flasks; the color of the boxes, and of the letters on them, are entirely different. The names on the flasks were first blown there by the defendants; they added to the name of the article, both on the flasks and boxes, that of one of the defendants, and prefixed the name “ London,” to the name on the box. There could be no pretence that the most casual and ignorant observer would not discriminate the articles, much less persons who knew what they were going to buy (Crawshay v. Thompson, 4 Man. & Gr. 357; Snowden v. Noah, Hopk. 347; Bell v. Locke, 8 Paige, 75), and, therefore, as I shall presently show, the plaintiffs are not entitled to any relief.

No fraudulent intent in the use of the title “ Club House,” is charged in the complaint, proved by the evidence or found by the court. The decision must, therefore, have rested exclusively on the ground, either that a plaintiff, having made use of a title to designate his wares, no one else has a right to use the same to designate similar wares, or that the subsequent use, by such other person, of such title, is in law or fact a representation that his wares are the same.

There is also no finding by the court, whether the addition of “London,” or the defendants names, was not sufficient to distinguish them, which has been held to be fatal to a claim of the same kind, (Snowden v. Noah; Bell v. Locke, ubi sup.; Perry v. Truefitt, 6 Beav. 73,) and, therefore, I must assume that they were taken as matter of law not to be sufficient. The right of a plaintiff to the exclusive use of a name, of course, can only grow out of the, principle that the subsequent use of it, by another, amounts to a representation that his wares are the same. Of course it will not be contended, that if he has confined its use to a particular commodity, he can prevent it being applied to others of a different kind. Such a copyright in a name would be more extensive and durable than those granted by authority of the Federal Constitution, although its grant by the courts of a state might somewhat trespass upon the exclusive powers of the general government. (Gibbons v. Ogden, 9 Wheat. 1.) Courts have upheld rights to devices, although, as I think, contrary to the spirit and even letter- of that instrument. The origin of the favor shown to trade-marks was the protection of the public, and not merely the individual dealer. The first case containing this doctrine reported, on which all the others seem to depend, is found in a note of Doddridge, J., to the case of Southern v. How, (Popham, 143, and Cro. Jac. 471,) and referred to by Lord Hardwicke, in Blanchard v. Hill, (2 Atk. 484,) and then the action was brought by a purchaser. In Blanchard v. Hill, Lord Hardwicke makes the right of action grow out of the fraudulent design both of putting off an inferior article, and drawing away customers; he possibly may have meant that either was sufficient, and that both were not necessary. The doctrine y^as recognized as law by Lord Mansfield, in Singleton v. Bolton, (3 Doug. 393,) and enforced in Sykes y. Sykes, (3 Barn. & Cr. 541,) and thoroughly sifted and defined in the elaborate and important case of Crawshay v.Thompson, (ubi sup.) In that case, a bold attempt was made to make tbe defendant liable for the use of trademarks, without reference to his intention, but it was thoroughly canvassed and rejected by the entire bench; so that, at common law, an action will not, lie without proof of an intent to deceive, and it is by-no means clearly settled that courts of equity will interfere without some evidence of fraud. They operate by their remedial powers to prevent the continuance of a wrong, and reach the past action of the offender by converting him into a trustee for the injured party; so that, now, even though the article sold with the similated mark be equally good with the genuine, the owner of the latter is entitled to preventive relief, although the public may not have been the sufferer. It seems impossible now to discover the first assumption of this jurisdiction, or its reasons.

Every reported case in a court of equity, however, that I have been able to find, recognizes, as I construe them, 'two principles: First, the necessity of an intent to injure , the originator of the trade-mark, by passing off the wares of the offender as those1 of the former; and secondly, that if ■’ the trade-mark consists of words, they must indicate ownership and origin, and not merely other attributes such as quality, kind, texture, composition, utility, destined use, or class of consumers. The encouragement of this exclusive .use of a word,- not indicating ownership or origin, as a name of any thing, is not a matter of public policy; no great ingenuity or powers of invention are taxed or stimulated thereby. The injury to the public, by the mysterious fascination of far-fetched or high-sounding" names, and strange devices, investing a worthless commodity with the charms of an unknown origin and pompous title is, generally, greater than any benefit to those who first adopt it. It is somewhat singular, that an article only known as the product of a particular person’s skill and labor, and for its excellence as such, rises more slowly in popular favor than those dignified by fanciful names, suggested by a capricious fancy or barbarous taste, and often concealing even baneful compositions, although, when risen, it remains longer stationary. Courts of equity, I think, have not undertaken to sustain any such result by the principles adopted by them, but repudiate any exclusive right to mere epithets.

In almost every one of a series of cases decided by the able Master of the Rolls, Lord Langdale, he repeats the principles regulating the use of words as part of a trademark. Thus parties were restrained by him in Perry v. Truefitt, (ubi sup.,) in the use of a name, from “ attracting custom, which would have otherwise gone to the person first using it.” In Knott v. Morgan, (2 Keen. R. 219,) he stated that the plaintiff could “not have any exclusive property in mere words used as a title,” and held the only question to be, whether the defendant imitated insignia as well as a title. He drew the distinction between the abuse of a name as an instrument of fraud, and its proper use in Croft v. Day, (7 Beav. 74,) and distinctly repudiated any exclusive right to the use of a name. His very words were, “ The right which any person may have to the protection of this court does not depend upon any exclusive.right which he may be supposed to have to a particular name or form of words. His right is to be protected against fraud, and fraud may be practiced by means of a name, though the person practicing it may have a perfect right to use that name, provided he does not I accompany its use with such other circumstances as to effect \a fraud upon others.” In the case of Truefitt v. Perry, in volume 6, id., (p. 73,) the same learned judge exhibited dissatisfaction with Millington v. Fox, (3 Myl. & Cr. 338,) which he seems to have supposed went to the extent of prohibiting the adoption of a mark, by which the goods of another are designated, if it prejudice the trade of the latter, without regard to the intent of such use, or the circumstances accompanying it, which doctrine was repudiated in Crawshay v. Thompson. He remarked, no other case had gone that length; but it will be found, on examination, no such doctrine was sustained in the case of Millingtons. Fox, (ubi sup.) The same doctrine, as to the use of words, is laid down by the learned Vice Chancellor of England, (Sir W. Page Wood,) in The Collins Co. v. Cowen, (3 Kay. & Johns. 428;) in a few lines he expresses the whole law of trade-marks by names : He says, “ There is no such thing as property in a trade-mark as an abstract name. It is the right which a person has to use a certain name for articles which he has manufactured, so that he may prevent another person from using it, because the mark or name denotes that articles so marked were manufactured by a certain person, and no one else can have the right to put the same name .upon his goods, and thus represent them to have been manufactured by the person whose mark it isP This principle will be found not to have been swerved from in any case, whatever additional means may have been adopted to perpetrate a fraud.

The same principle has been adhered to in our own courts. In Partridge v. Menck. (2 Sandf. Ch. 622,) Walworth, Chan., confined the character of the name which was to be a trade-mark, to one “ indicating the manufacture and sale of the article by the party injured, or that he carries on his trade at a particular place. . In the Amoskeag Manufacturing Company v. Separ, (2 Sandf. S. C. R., 599,) the late lamented chief justice of this court, said : “ The owner of a trade-mark has no right to an exclusive use of any words, letters, figures, or symbols, which, have no relation to the origin or ownership of the goods, and are only meant to indicate their quality. He has no right to appropriate a sign or symbol which from the nature of the fact it is meant to signify, others may employ with equal truth, and therefore have an equal right to employ for the same purpose.” In Fetridge v. Wells, (4 Abb. 14,) the same learned judge in this court, recognizes the same principle, that “ a name can only be protected as a trade-mark when it is used merely as indicating the true origin and ownership of the article.” In Stokes v. Landgraff, (17 Barb. 608,) the Supreme Court of this State held, that no property could be acquired “ in words, marks or devices, which do not denote the goods or property, or particular place of business of aperson." In the case of Burnett v. Phalon, recently decided by Justice Piebbepont, in this court, he holds distinctly, that “ a manufacturer cannot acquire property in words known to the language and in common” use, to designate things or their qualities.” The court, in Thomson v. Winchester, (19 Pick. 214,) went so far as to refuse to prohibit the defendant from using the plaintiff’s own name when it appeared to have come by use to signify an article generally, and not its mere origin or ownership. The doctrine of the Amoskeag Manufacturing Company v. Spear, (ubi sup.,) is fully upheld in this court in the case of Williams v. Johnson, (2 Bos. 1,) and an injunction was refused unless the trade-mark designated the plaintiff’s manufacture. The cases stated, are sufficient to show the strong current of authority, although others might be added.

A host of cases are appealed to as holding an opposite doctrine, all of which, on examination, will be found fully to concede that already laid down. Among these, are Knott v. Mergan, (ubi sup.,) already referred to ; Hine v. Lart, (10 Lond. Jur. 106;) Gout v. Aleplogue, (1 Chit. Gen. Pr. 721, S. C. 6 Beav. 69, n. and 7 Am. Jur. 277;) Perry v. Truefitt, (ubi sup.;) Millington v. Fox, (ubi sup.;) Coffeen v. Brunton, (4 McLean, 517;) Brooklyn Lead Company v. Masury, (25 Barb. 416;) Clement v. Maddicks, (22 Law R. 428;) Spottiswood v. Clark, (10 Lond. Jur. 1,048, cited in 2 Sandf. Ch. 628 ;) Christy v. Murphy, (12 How. Pr. 77;) Taylor v. Carpenter, (3 Story, 458, 11 Paige, 292;) Pierce v. Franks, (122 Law J., cited in 2 Sandf. Ch. 600;) Stone v. Carlan, (13 Law R. 360;) and lastly, Howard v. Henriques, (3 Sandf. S. C. 375,) in this court; yet all of these contain distinctive features of their own which sustain the decisions as consistent with the principle already alluded to.

Thus, the word “ Ethiopian,” which was the trade-mark in Hiñe v. Lart, was printed in a curved form, in Egyptian characters, in a particular shade of a dark color, with certain rings of the same color above and below it, upon black stockings. The only difference between the original and imitation was the shade of color. The injunction was given against the use of the device, not the word “ EthiopianP The Turkish word for warranted (Pessendede,) with the initials R. G. above it, a crescent and other devices, being the trade-mark imitated ; in Gout v. Aleplogue, the injunction was against using the device, not the words. An injunction was refused in Perry v. Truefitt, among other things, because every word in “ Medicated Mexican Balm,” which was the trade-mark, was perfectly capable of being applied to a different composition, beside other grounds. The baptismal name of one of the plaintiffs, which was also the first name in their firm, was branded on their iron when sold, as a trade-mark, in Millington v. Fox, (3 Myln & Cr. 338,) and an injunction was granted although the article had, acquired in the trade by long usage, such name as its title, although originally a proper name; in that respect hostile to the case of Thomson v. Winchester, (ubi sup.) The circumstance of the name being that of the plaintiffs, seems to have been overlooked by Lord Langdale, in Truefitt v. Perry, (ubi sup.,) when expressing his dissatisfaction with the case of Millington v. Fox. But costs were refused in that case because the defendant had not been guilty of any intentional wrong.

In Coffeen v. Brunton, (4 McLean, 577,) the names were entirely different, one being the “ Ohio,” and the other the. “Chinese” liniment; but the body of the label and the directions for their use, were printed alike, and other means used to deceive the unwary into the belief they were the same article. The injunction was only against the use of similar labels, nothing being said about the names. These last two cases are cited in Fetridge v. Merchant, (4 Abb. Pr. R. 156,) as authority for a proposition contained in it, which, on a close examination, they will be found not to sustain.

The plaintiff’s own name, with a colorable alteration, was printed in the Brooklyn Lead Company v. Masury. The injunction in Clement v. Maddiclcs, was confined to a colorable imitation of the style of printing the names. In Spottiswood v. Clark, the injunction was dissolved, the use of the same title only being complained of. The plaintiffs own name had been used in Christy v. Murphy. The form or mode of branding, imprinting or using the name, was taken as part of the trade-mark in Taylor v. Carpenter, and Pierce v. Franks. The case of Stone v. Carian, like that of Knott v. Morgan, (ubi sup.,) turned upon the mode of painting the names on the side of carriages.

None of the cases so enumerated, therefore, impugn the doctrine that names haying a definite and established meaning in the language, which do not indicate ownership or origin, or something equivalent, cannot be appropriated by one so as to exclude a similar use by others. They also steer clear of the principle adopted in Burnett v. Phalon, which was that letters, like other devices, may be combined to form a trade-mark even although they form a pronounceable word; provided they do not form a word indicating in its ordinary sense, an attribute of the article not equivalent to ownership or origin. With that limitation, the proposition in Fetridge v. Merchant, (ubi sup.,) that a name may be given “to an article or compound, every ingredient or portion of which is open to the use of every one, but the sale of which, under that appellation, is not lawful to any other person but the giver,” is sound; otherwise, the doctrine of that case is directly opposed to the case immediately preceding it, in the same hook, Fetridge v. Wells, (4 Abb. 14,) which has been already quoted.

The only remaining case to be examined, if it be a case of trade-mark at all, is that of Howard v. Henriques, (3 Sandf. S. C. 725,) in this court. In that case the plaintiff had for a long time kept an inn in high repute, called The Irving Hotel. The defendant started a rival establishment with the same name. In that case the name used did not designate any attribute of the hotel; it did not intimate that it was better or worse, in a good or bad situation, frequented by respectable people or suspected characters, well or ill kept, much or little frequented, cheap or dear; it might have been either under the same name. It would seem, also, that the defendant employed the name to entice customers to his house, as being that of the plaintiff, and made it an instrument of deceit. It was not even laid down in that case generally, that the adoption of a name for a hotel, excluded all others from adopting the same name. Such a principle would be a blow to giving charitable and other institutions, even municipal towns and private individuals, names borne by others, for fear of interfering with their business. Such a privilege cannot be acquired at common law as a copyright; it could hardly be acquired in equity by an injunction against invaders. If it could, the name of everything in the language might be appropriated so as to deter every one from using an epithet for his wares, lest he should be invading some prior right. The energetic, fair and open competition of commerce, should not be so cramped, or the novel but dull use of a name, be confounded with the hard-earned reputation of the wares themselves if sold, known and distinguished, by the name of the maker or dealer.

The term “ Club House,” does not indicate ownership or origin, and does signify some other attribute as quality or kind as distinguished by the nature of the place of its consumption or class of consumers. The title was suggested, as the plaintiffs themselves allege, by the existence in the city where the article was manufactured, of associations called clubs, whose places of meeting were termed “ Club Houses,” where the best articles of the kind were really, or believed to be, consumed; and it was undoubtedly adopted to indicate a high • degree of excellence. The evidence in this case shows the constant use, for a quarter of a century, of these words, to indicate a superior quality including the article in question, (gin,) being in fact the natural result of the high standard required in such institutions. It meant no more than Royal, Imperial or Princely, would do.

The general rule is against appropriating mere words as a trade-mark. The exception is of those indicating ownership f or origin, having no reference to quality or use. The words ! in question come directly within the definition in Amoskeag Manufacturing Company v. Spear, before cited. They are but “ a symbol which, from the nature of the fact they are used to signify, others might employ with equal truth, and . therefore have an equal right to employ for the same purpose,” and no better test could be used. Can any one say they have no idea of the character claimed for the gin by the use of the words in question; and they only imagine them to express that it was made by some particular person ? The moment the straight forward and simple mode of indicating ownership by the owner’s name is abandoned, j the burden is thrown upon the complaining party of show-U ing that the designation used, does not mean something( relating to the quality of the article or some other attribute.

A title indicating anything untrue in the composition of a commodity, cannot be protected as a trade-mark, Fetridge v. Wells, (4 Abb. Pr. R. 144.) The title in this case would be untrue if intended to indicate origin, and would only be justifiable as indicating quality. One of the findings in this case is, that the name employed, did not indicate origin or ownership, without initials or names. As the use of the name was not found as a question of fact, to be with bad intent, it must have been innocent; and at least no costs or damages should be allowed against the defendants under the decision of Millington v. Fox, (ubi supra.) The plaintiffs, however, seem to base their claim somewhat on the grant to them of the use of the trade-mark by their assignor, and the contract of the latter with the distillers in Holland. Neither the Rotterdam manufacturers hor Mr. Campbell, of course, could grant any rights they could not acquire themselves; and neither of them could alter the meaning or efficacy of the word “ Club House.” The use of the term might be equally innocent, or equally a medium of imposition, no matter by how many persons in succession it might have been used. Were it a mere question of priority of use, the length of time, openness and continuity of that, might have some bearing upon it. 'But it is doubtful ; if the right of using a mere trade-mark, by itself, can be , transferred like a copyright, so as to make wares not yet in existence, the subject of them, and the injury to an assignee of it, greater or less by the use of it by others. The imitation of a trade-mark is entirely a personal injury; it is merely passing off the wares of the imitator as being those ■ of the party injured. I do not see how his borrowing or purchasing the supposed right to use a certain mark to ' designate his wares, can make the offense greater or less. Still less do I see how the relinquishment by the assignor, ~7 of his „ trade-mark, and the dealing in particular wares, I although in favor of a certain person, can prevent the rest of the world from using that trade-mark .to distinguish their wares. On the other hand, although a name has been used" by any one as a trade-mark, and is susceptible of being lised as such, its. previous employment by him, when abandoned, does not prevent any one else from employing it to designate their wares. It is wholly immaterial how long or how much a word has been employed as a trademark. The employer of it, can neither give any special right to another, nor abandon it to the community so as forever to take away the right of employing it to designate \ his wares. If he can, the first use of a trade-mark gives a \ common law perpetual copyright in it. If that exist in this case, it must be in the tradesmen in London and Dublin, who applied the term “ Olub House,” to superior articles, and particularly to those who applied it to gin, as testified to by the witnesses.

But the question arises, what do the plaintiffs intend by “ Olub House?” If it means only gin manufactured by the distillers at Rotterdam, then it includes all they make; and they may equally give the right of using the trade-mark to any one. If it means all they make of the kind imported by Mr. Campbell, then he must join in the permission to use it; or if it means that imported by the plaintiffs, they must create it as their own trade-mark, and then it is proved to have been a designation well known for twenty years.

But if “ Club House” could be and was the plaintiffs’ trade-mark, the defendants seem to have used every precaution to prevent their commodities from being confounded. The differences already pointed out in the vessels in which they were sold, and the additions to the title were amply sufficienf'under the authority of the cases cited. Had the question been submitted to a jury which was submitted in Crawshay v. Thompson, (ubi sup.), there can be no doubt-what the result would have been.

Moreover, the defendants’ wares are intended for, shipped to and circulate in the California market alone, where only recently the plaintiffs have followed them. Of course, the latter cannot claim their trade-mark to be prior in time, there; they have not monopolized all the markets in the world, and cannot exclude the defendants there.

I may remark, also, that the trade-mark as claimed, differs considerably from that proved. They now limit it to an appellation, without any signs or letters to represent the sound or the idea conveyed. Such signs or letters, if used, may become part of the trade-mark when combined with others; but in such case, the sound they represent, or the sense they convey, ceases to be part of it.

For these reasons, I think the judgment erroneous, and it should be reversed, and a new trial had with costs to abide the event.

Pierrepont, J., concurred in reversing the judgment, and it was ordered accordingly.


author: By the Court. Hoffman, J.

text:
    Stephen B. Hutchings and Abraham S. Jones, Executors, &c., of William Osborn,deceased, v. Thomas Baldwin and George Baldwin.
    Where one W. 0., of the city of Kew York, by his will, dated October 7,1841, and proved June 14,1842, as a will of real and personal estate, after directing that all his debts and funeral expenses be paid, gave all the rest and residue of his estate, real and personal, to his wife E., during her natural life, with power during her life to make leases of the real estate, with the concurrence of the acting executors, provided the leases commenced in possession and were not for more than twenty-one years; and declared such bequest and devise to be in lieu and bar of all dower and other claim on the estate; and then authorized the acting executors to sell all or any of the real estate, absolutely, and convey it by sufficient deeds to the purchasers, and declared that after the sale his said wife should have the same interest in the proceeds of the property sold, as she had before the sale in the property itself; and then directed, that “ after the decease of his wife,” one-third, of his estate, real and personal, should be divided into four equal parts, and gave orne of these four parts to A. E., for life, and after her death, to the children of R. B., deceased; one to S. S., for life, and after her death, to her children; one to M. S., for life, and after her death, to her children, and the other to the children of said R. B.; and then disposed of the other two-thirds by giving, “ subject to his said wife’s life estate,” one-sixteenth of said two-thirds to his brother H.; one-sixteenth to the children of his sister H.¡ one-sixteenth to one W. O.; one thirty-second to J.; one thirty-second to A.; and one-sixteenth to N., during her life, and after her decease, to her children; and by then giving one-tliird of the residue of his estate to M., “ absolutely, forever, subject to his said wife’s life estate,” and by then giving all the rest and residue of his estate, real and personal, “ subject to his said wife’s life estate,” “ absolutely, forever,” “ one-seventh thereof to each” of seven nephews and nieces named in the will; the said will then declaring, that “in case of the death of any devisee or legatee before me (the testator), unless his or her share is expressly for life only, the same shall pass to his or her next of kin as personal estate, as if such devisee or legatee had received the same and it had passed from him or her as personal estate in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested, as personal estate at my decease, but so as to be subject to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives.” Lastly, it appointed the testator’s wife, E., executrix, and the defendants, Stephen B. Hutchings and Abraham S. Jones, executors of said will. The last two alone qualified. The widow of the testator died September 27, 1858.

      1. Held, that after her death, the said executors could make a valid contract for the sale and conveyance of real estate of which the testator died seized, and the defendants were decreed to specifically perform a contract made by them with said executors, on the 10th of October, 1859, for the purchase of a parcel of such real estate.
    (Before Hoffman and Woodeuff, J. J.)
    Heard April 12,
    decided July 7, 1860.
    This is a case agreed upon by the parties, and submitted under the 372d section of the Code.
    William Osborn, of the city of New York, died, after having made, published and declared his last will and testament, dated October 7, 1841. The provisions of the will are as follows, viz :
    “ First, I direct all my lawful debts and funeral expenses to be paid. Secondly, all the rest and residue of my estate, real and personal, I give to my beloved wife Elizabeth, during her natural life; she to receive the rents, profits, interest and income thereof, during her natural life, for her own use. I also empower her, during her natural life, to make leases of said real estate (with the concurrence or approval of my acting executors if any others should act and be living, otherwise without such concurrence or approval), but so that said leases commence in possession, and be for not more than twenty-one years, and no bonus for the leases be taken; this bequest and devise to her to be in lieu and bar of all dower and other claim on my estate. Item.—I authorize my acting executors, and the survivors of them, to sell all, or any part, of my estate, real or personal, absolutely, and to give sufficient deeds to the purchasers ; * * * such sale not to vacate any previous recorded lease, executed according to the provisions of this will; and after the sale my said wife shall have the same interest in the proceeds as ' she had in the property before the sale. Item.—After the decease of my said wife, I direct one-third of my said estate, real and personal, to be divided into four equal parts : one of these four equal parts I give to my wife’s sister, Ann Nixon, during her natural life, and after her death, to the children of her brother, Robert Barnes, deceased, share and share alike forever; one other of those four parts I give to her sister, Sarah Sheldon, during her natural life, and after said Sarah’s death, then to her children, share and share alike, forever; one other of those four parts I give to my wife’s sister, Margaret Sheldon, during her natural life, and after her death, to her children, share and share alike; and the other of those equal fourth parts I give to the children of my wife’s said brother, Robert Barnes, deceased, share and share alike, .forever. Item.—The other two-thirds of my said estate, real -and personal, I dispose of as follows, subject to, my said wife’s life estate, namely : I give one-sixteenth part of said two-thirds to my brother Henry; one other sixteenth part I give to the children of my sister Hannah, deceased, forever, share and share alike ; one other sixteenth part I give to William Osborn, son of my brother Jotham, deceased; one thirty-second part of said two-thirds I give to my brother Jonathan; one other thirty-second part of said two-thirds I give to my brother Abner; one other sixteenth part of said two-thirds I give to my sister Nancy, during her natural life, and after her decease, to her children, share and share alike, forever. Item.—I give one-third of all the rest, residue and remainder of my estate, real and personal, to my brother Michael, absolutely, forever, subject to my said wife’s life estate. Item.—All the rest, residue and remainder of my estate; both real and personal, subject to my said wife's life estate, I give to the following persons, to each his or her share absolutely, forever, namely: one-seventh thereof to each of the three children of my sister Phebe, deceased, named Agnes Labaugh, Sarah Ann Jones and Thomas Whitlock, being children by said Phebe's first husband, John Whitlock; and also, one-seventh to each of the four children" of my sister Sarah, deceased, that is to say, to William 0. Dunham, Joseph E. Dunham, Amanda Dunham and Emma Dunham. Item.—In case" of the death of any devisee or legatee, before me, unless his or her' share is expressly for life only, the same shall pass to his or her next of kin as personal estate, as if such devisee or legatee had received the same, and it had passed from him or her as personal estate, in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested as personal estate at my decease, but so as to be subject'to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives. Lastly.—I constitute and appoint my wife Elizabeth, executrix, and my friends Stephen B. Hutchings and Abraham Jones, executors, of this my will, and they shall not be liable for anything, except each for his own wilful default, but each for his own acts, deeds and wilful defaults, and not for those of the other, nor for joining in receipts for conformity, without receiving the moneys.”
    The said will was proved, as a will of real and personal estate, before the surrogate of New York, on the fourteenth day of June, A. D., 1842 ; on which day, letters testamentary were granted by the said surrogate to Stephen B. Hutchings, one of the executors named in the said last will and testament.
    On the llth day of December, A. D., 1842, letters testamentary were also granted by the surrogate of New York to Abraham S. Jones, also one of the executors named in the said last will and testament, in conjunction with the said Stephen B. Hutchings, theretofore qualified.
    The widow of the testator died on or about the 2l7th of September, A. D., 1858. Letters testamentary were not granted to her, and she left her surviving the said Stephen B. Hutchings and the said Abraham S. Jones.
    The testator was, at the time of his death, seized of a certain parcel of land, situate in the city of New York, and described in the case.
    On the 10th of October, 1859, Stephen B. Hutchings and Abraham S; Jones, the surviving executors of Osborn, entered into a written contract with the defendants, for the sale to them, and purchase by the latter, of such parcel of land. By the terms of such contract, if the parties of the second part (the purchasers) failed to comply with the covenant on their part, they were to forfeit $1,000, which was paid down on signing the contract; and if the title should prove defective, such sum was to be returned to them.
    “ The said surviving executors have, since the first day of February, 1860, the day mentioned in the said agreement. for the completion of the purchase, duly tendered to the said Thomas Baldwin and George Baldwin, a deed for the premises above described, duly executed and acknowledged, and demanded the balance of the money to be paid by the last named parties upon the delivery of the said deed, pursuant to the said agreement. The deed, as tendered, was not objected to, as to form and execution, by the last named parties, yet they refused to take the said deed, and to pay the sum of six thousand five hundred dollars, so agreed by them to be paid, as aforesaid.” A copy of the said deed is annexed to the case.
    “ The said defendants, Thomas Baldwin and George Baldwin, objected to the receiving of the said deed, on the ground that the said Stephen B. Hutchings and Abraham S. Jones had not, under and by virtue of the said last will and testament of the said William Osborn, or otherwise, any power or authority to convey the real estate mentioned in the said deed, or to give a good and sufficient title therefor.”
    “ This case is submitted by the parties above named, to the Superior Court of the city of New York, for the purpose of determining the rights of the parties, according to the provisions of section 3l2 of the Code of Procedure. And it is agreed, that if the court should be of opinion that the said Stephen B. Hutchings and Abraham S. Jones, executors, as aforesaid, have power and authority to convey the said property, that then, and in such case, the said court shall give judgment accordingly, and shall adjudge and decree that the said defendants,. Thomas Baldwin and George Baldwin, specifically perform their contract aforesaid, and pay to the plaintiffs the remainder of the purchase money of the said property, being the sum of six thousand five hundred dollars, with interest from the first day of February, 1860.”
    “ And it is agreed, that if the court should be of opinion that the said plaintiffs, executors, as aforesaid, have not power and authority to convey the said premises, that then, and in such case, the said court shall give judgment accordingly, and that the sum of one thousand dollars, already paid as part of the said purchase money, shall be repaid to the said' Thomas Baldwin and George Baldwin, and the said contract of purchase by them be declared null and void, and of no force or effect; and that the said parties, plaintiffs and defendants, may respectively have such further or such other relief as to this court may appear proper.”
    The case was properly signed and duly verified.

      E. W. Walgrove, for the Plaintiffs.

      Messrs. Berrien ¿f Pert, for the Defendants.
   By the Court. Hoffman, J.

—The authority conferred in this will upon the executors, is not an estate in trust, but a power; an authority to do an act in relation to lands. (1 R. S. 732, § 74; Lang v. Ropke, 5 Sand. 362; Reedy. Underhill, 12 Barb. 113; Tucker v. Tucker, 1 Selden, 408.) The power in question, is a general power in trust, (§ 114, [94,] 1 Revised Statutes, 734, article, Powers.) By section 122, [102,] the provisions of the second article of the title from sections 66 to 71, both inclusive, are made applicable to powers in trust, and the grantees of such powers. By section [67,] page 730, “when the purposes for which an express trust shall have been created, shall have ceased, the estate of the trustees 'shall also cease.” So when the purposes of a power are accomplished, the power is at an end.

We are then required to examine the will of the testator with care, to ascertain to what extent and for what purpose he has created and conferred the power; and while on the one side, his general language should not be strictly and rigorously construed so-as to admit of no case for its exercise which is not to a demonstration within those purposes ; on the other, if we find that estates and interests fully vested, are to be affected by its execution, we must be scrupulous in extending it, because it would be, in so far, an encroachment upon that absolute right of disposition which attends proprietorship.

In construing this authority and determining its extent, the intention of the testator in creating it must constitute the guide. Fronty v. Fronty, (1 Bailey’s Eq. Rep. 517 ;) Wilson v. Troup, (2 Cowen, 195.) The devisor has, in the first place, given to his wife a clear life estate, in all the remainder of his property, real and personal, after payment of his debts; “ she to receive the rents, issues and profits, during her natural life, for her own use.” He has then empowered her to make leases during her life, (with the concurrence of his other acting executors,) so that such leases commence in possession, and be for not more than twenty-one years. This bequest to her was to be in lieu of all dower and other claim upon his estate.

The language of the authority is .absolute and comprehensive ; so much so that we are bound to see clearly, that it is to be restricted by force of other clauses, to certain cases, or for certain purposes; otherwise, it undoubtedly would authorize a sale after, as well as before the death of the widow.

It is not enough to restrain it that portions of the will indicate that he contemplated that some of his real estate might remain unsold after her death. He might well expect that the executors might, in exercising a sound discretion, leave portions, if not all, unsold.

The more important clause, is- the one which provides, that “ after the sale, my wife shall have the same interest in the proceeds as she had in the property before the sale.” At the first view, this would tend to the conclusion, that the sale was to be during her life. But it admits of the meaning, that if a sale is made either of all the real estate, or of any portion while she lives, such shall be her interest in the avails. It is not sufficient to overrule the comprehensive language of the power.

There is another clause of great importance. He directs “ that every devise or bequest, shall be considered as vested as personal estate, at his decease, but so as to be subject to any prior life estate executed by this will, and not to bear interest in favor of any party until the time for payment to such party arrives.” This, and other clauses, indicate with sufficient clearness, that he meant and expected that his property should, for the purposes of distribution, be treated as personal estate, and hence tend to construe and define the power .to sell, by which a conversion actually into personalty, would be accomplished, and give it full and absolute effect.

In Meyrick v. Coutts, (Exch. 1806, cited by Sugden on Powers, vol. 1, page 335,) a devise was to A. the testator’s wife, for life'; and after her decease, a power-to trustees to sell, and pay the money among the children of B., who had an infant child then living. The court held that a sale could not be made "till after the widow’s decease. Here the power did not arise until her death.

In Fry v. Fish, (Rolls 5, Áug. 1811, cited also by Mr. Sugden on Powers, vol. 2, p.463,) amotherhad joined in a recovery and settlement, by which the estates were limited to her for life, then to the husband of her daughter for life, with remainders over to children of the marriage. There was inserted a power of sale at any time during the lives of husband and wife, with their consent, and of the survivor. A sale was made in the lifetime of the mother. It was objected that the power could not be executed until her death; but the purchaser was compelled to take.

Here the outstanding life estate did not prevent a sale, because the mother had united in the instrument which conferred the power on the trustees with consent of the husband and wife.

In Moseley v. Hide, (17 Queen’s Bench, 91,) a sale made during the life of a wife, when the power was given, to be exercised after her death, was held invalid.

This also was a case of a plain restriction to a given event, for the exercise of the power.

The judgment must be for the performance of the contract, payment of the purchase money by the defendants, and conveyance by the plaintiffs, according to the submission, without costs to either party.

Ordered accordingly.