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685
ant could not consent to give plaintiff 10 per cent. commission on all defendant's sales, because defendant 811· -ready had a trade in that line of goods, but that defendant would give plaintiff 7t per cent. commission on all the goods he should sell and all the trade he should make for the defendant. Whether plaintiff replied by letter accepting the defendant's proposition is a fact in dispute, plaintiff claiming that he did reply, and the defendant that there was no reply. However the fact may have been, the plaintiff immediately proceeded to obtain orders for defendant, and defendant filled them, shipping the goods to the purchasers, until in January, 1874, the parties agreed upon a reduction of plaintiff's commission to 5 per cent., to 'take effect from March 1, 1874. The business relations of the parties continued until May, 1874, when the defendant discontinued the arrangements with the plaintiff, upon the ground that plaintiff was selling goods of the same kind as the defendant's for competitors of the defendant. The evidence authorized the jury to find that there was due, above payments from defendant to plaintiff, a somewhat larger sum than that found by the verdict. The court ruled that the evidence established a contract by which the plaintiff had the right to sell the defendant's "goods for two years; that there was no condition implied that he should sell exclusively the defendant's goods; that the ageement of the parties was valid within the statute of frauds, and that the plaintiff was entitled to recover commissions on all sales made, and the trade he procured for the ant during the two years, at the rate of 7!- per oent. up to March 1, 1874, and 5 per cent. thereafter. What the contract between the parties was is to be determined by the letters which passed between them. The plaintiff's letter was a proposition to sell defendant's goods at a commission of 10 per cent. upon defendant's total sales, provided the arrangement could be made for two years. The defendant's reply was a counter proposition based upon the plaintiff's, and was an implied assent to the terms proposed by plaintiff, except so far as plaintiff's proposition was mod· ified. This modification related only to the amount of the
686
FEDERAL REPORTER.
commission and the basis upon which it should be computed. The two letters are to be read together, and, thus read, in legal effect defendant's letter was a proposition to pay plaintiff 7t per cent. commission upon all goods he should sell, and all trade he should make for defendant for a period of two years. The condition that the arrangement should continue for two years was evidently inserted for the plaintiff's benefit. He did not agree that he would sell defendant's goods for two years, but he reserved the right so to do because his most valuable exertions would consist in introducing the defendant's goods to the favor of his customers. In this view the agreement was not one necessarily to be performed within a year; but, assuming that it was not to be performed within a year, the letter of the defendant, read with plaintiff's letter, was a proposition in writing, the terms of which were fully expressed, which was subscribed by the party to be charged, and which, when acted upon, was assented to and became the contract of the parties. The plaintiff was under no obligation, express or implied, to devote himself exclusively to the sale of the defendant's goods. He was no more obligated to sell exclusively for the defendant than the defendant was to sell exclusively through the plaintiff. He was to have a commission on what gooda he sold and on what trade he made, but he was under no legal obligation to obtain a single order for the defendant. He was merely a broker, whose commissions depended upon services. The defendant had no the efficiency of his more right to complain that plaintiff sold goods for others than it would if he had not endeavored to sell as many goods for the defendant as he did. As the plaintiff did not attempt to sell 'any goods for the defendant after the latter notified him that the commissions were to be discontinued, and as he waived upon the trial any recovery for commissions upon sales which he might have made during the two years if defendant had not terminated the agreement, his recovery was limited to commissions upon hade ·actually made by him within the two years. It is
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sisted that, inasmuch as the evidence did not show plaintiff to have been the proximate cause of each particular sale made by the defendant to purchasers originally introduced by plaintiff, it was erroneous to permit the jury to consider sales made by defendant after plaintiff had ceased to solicit orders, as a basis for the estimate of damages. The jury were instructed that plaintiff was entitled to commissions on all the trade made by him for the defendant within the two years, and that trade made by him included all the sales made by the 4efendant of which the plaintiff was the inducing cause. This, of course, permitted the -jury to find that he was entitled to commissions on many sales made by the defendant, in regard to which the plaintiff's intervention consisted solely in originally introducing the purchaser to the defendant. Undoubtedly, if the agreement had been for commissions upon all goods sold by the plaintiff, this would not have authorized commissions where the particular sale was not made in consequence of the plaintiff's services. But the stipulation to pay commissions not only upon all goods sold by him, but also upon all trade made, cOllld have been made with no other intent than to secure plaintiff commissions, whether the particular sale was made by him or not, whenever it was due to his influence and the defendant derived the benefit of it. I am satisfied that there were no errors on the trial, and that the verdict of the jury, though perhaps more liberal to the plaintiff than was to be expected, cannot be considered as against the lividence. Motion for new trial denied.
688
FEDERAL .nEPOnTEB.
CARROLL V. ERTHEILER.·
(Circuit Court, E. D. Pennsylvania. April 6, 1880.) TRADE-MARK-NAME-INFRINGEMENT.-Where the dominating characteristic· of 8 trade-mark is a name by which the manufacturer's goods have become familiarly known to the public, another rrumufacturer has no right to designate his goods by that name, even though he accompanies it with a different device. DISTINCTION BETWEEN CIGAUETTES AND lOBAcco.-Although the revenue laws distinguish between cigarettes and smoking tobacco, there is no such substantial difference as will justify a manufacturer of cigarettes in applying to them a name which has become the well-recog'nized designation of another manufacturer's smoking tobacco. COl1lplainant, a manufacturer of smoking tobacco, used a trade-mar.k consisting of the name" Lone Jack," with an accompanying device, and his tobacco became known to the public by that name. Respondent SUbsequently commenced manufacturing cigarettes, using a trade-mark with the name" Lone Jack," accompanied with a device different from that of complainant. Held, that complainant was entitled to an injunction. PRACTICE-EvIDENCE-PREPARATION OF AFFIDAVITs.-'Vhere affidavits have been prepared and printed without seeing the witnesses, and sent over the country to be signeri by those who might be found Willing to do so, the statements therein are not regarded with confidence by the Court.
Motion for It preliminary injunction. The bill set forth that complainant had for over 16 years manufactured smoking tobacco, and had adopted, and continuously and exclusively used dul"ing that time, a trade-mark, It prominent characteristic trait of which was the arbitrarily selected word-symbol "Lone Jack;" that he affixed this trademark, by means of printed labels and wrappers, to his smoking tobacco, which was put up in various styles of packages, including the form commonly known as cigarettes; that although the said word-symbol "Lone Jack" was generally used in connection with certain words, being advertisements of his name and place of business and other matter, and frequently the name of the specific article and the representation of the bust of a man smoking, still complainant's smoking tobacco came to be popularly known among merchants and consumers -Reported by Ifntnk B. Prichard, Esq., of the Philadelphia bar.
CARROLL ". ERTHEIJ,P'oB.
689
QY the peculiar distinctive designation of "Lone Jack," and
bought and sold, undE1r that name; that respondent, intending wrongfully to usurp complainant's reputation, and to deceive the public into supposing that they were buying complainant's tobacco, colorably imitated complainant's trademark, and in July, 1879, began to affix to goods of sub· stantially the same descriptive properties as complainant's the word-symbol "Lone Jack," and to sell smoking tobaMo wrapped in papers and bearing a label containing, as its most prominent characteristic, the said word-symb'ol, and that the public had been deceived thereby into buying respondent's tobacco, supposing it to have been manufactured by complainant. The bill prayed for an injunction and account. The answer denied that complainant had any proprietary or exclusive interest in the word-symbol "Lone Jack" by itself, and alleged that complainant's trade-mark only gave him the right to use the words "Lone Jack" in qonnection with the words "The Celebrated" above the bust of a man smoking a pipe, and with the words on each side of said ltnst, "Or seek no further, for better can't be found," and below said bust the words "Smoking tobacco, manufactured by John W. Carroll, Lynchburg, Virginia." It denied that complainant had ever applied said trade-mark to cigarettes, or to any other article than smoking tobacco, or that he had made or sold cigarettes by the name of "Lone Jack." It alleged that what is known by smokers and to the trade as smoking tobacco is a distinct article of merchandise from cigarette tobacco, and cannot be used for the manufacture of cigarettes, and that cigarette tobacco paid a special tax to the United States government. It further alleged that respondent had, in May, 1879, adopted and was entitled to a trade-mark for cigarettes consisting of the words "Lone Jack" above and the word "Cigarettes" below the figure of the jack of spades, and the name "Ertheiler & Co., New York," below, and "The best" below all; and that the sales of cigarettes under this trade-mark were the only sales by defendant plained of by plaintiff. The answer further denied that thefe v.l,no.9-44
