THE LEPAGE 00. V. RUSSIA CEJIENT CO.
941
gence, as stated in the charge, is not applicable, if the proof satisfies them that the killing occurred as plaintiff contends. Keeping in mind the time and circumstances of its delivery, we are satisfied that the charge of the court is not subject to the criticism the plaintiff levels at it. After covering the whole case, as it was doubtless presented in the pleadings, (only the petition of plaintiff is sent up,) and in the evidence, and in the exhaustive argument of counsel, the judge, in conclusion, tells the jury: "These are the two contentions in the case, and it is for you to determine if the one or the other is true. There is no evidence that the by the thing occurred in any other way. ... ... ... Which view of the case is true? The defendant's view of the case, as I understand it, would come within the principles of law I have given you,-the defendant would not be liable. In the plaintiff's view of the case it would be necessary for you to believe that knowledge was brought home to these employes, or the warning was elUch that they could have known the condition of the boy, and could then have stopped the train and saved his life. If that is true, plaintiff would be entitled to recover. "
We of opinion that on the point complained of the charge was <:lear and full, and to have repeated the instruction in the terms of the requested charges would have given it undue emphasis. 'Ve are therefore of opinion that the judgment of the circuit court should be affirmedj and it is so ordered.
TuE LEPAGE Co.
v.
RUSSIA CEMENT
Co.
(01n'cuit Oourt oj
First Circuit. September 15, 1692.) No. 17.
1.
ASSTGNMENT OF RIGHT TO USE OF NAME-IN"FRINGEMENT BY ASSIGNOR,
One Lel'age, having originated and soid extensively throughout the United States an article styled "LePage's Glue," organized a corporation, to which he transferred the assets and good will of the business. He continued active in the corporation for some time, after which he sold all his stock, and retired therefrom. Subsequently he manufactured individually a similar ar',icle, which he sold as "Glue made by LePage, " and tbereafter formed a new corporation, "The LePage Company," which sold the article as "Glue Made by The LePage Company." Held, that this was a violation of the right acquired by t.he original corporation to the use of the name "LePage" in connection with glues. Where such infringement is cleat', proof of actual fraudulent intent is unnecessary. The rights of the original corporation wet'e not affected by the fact that, after retiring therefrom, LePage obtained a patent on an alleged improvement over the original glue, and that the patent laws (Rev. St. 54900) required notice to be stamped on each package of the pal;ented article.
-2.
SAME-FRAUDULENT INTENT.
.8. SAME-PATENTED PREPARATION.
4.
SAME-ASSIGNMENT-EsTOPPEL.
.Ii·. SAME-ESTOPPEL So ne time before commencing the suit, the attorney for the original corporation, referring to prior litigation in the state courts, wrote as follows to defendant's
The LePage Company, by accepting the assignment of the patent, and allowing LePajte to manage and control its business, barred itself from denying that it was proceeding under his authority and as his sl1ccessor, and therefore it could have no greater rights, as against the original corporation, than LePage himself.
attorn!!,:; aTh!! Russia CemElllt are not disposed to fil!! a new bill against 'Y(lurclUDtlslfll8 of the na.m!! · CoiI1pany;' as all they'keepth!!mselves lines·. , I have advised the Russia Company that th!!.use of that name 'Is". Violation of their rights as heretofore defined by the decisions of the .court.. 'but:lIbey tbhik that,in view of those decisions and the pobllclty which has been gi.\'en the use of their name· .II/. the present manl/.,er. is, not likely to do tbem bann, enough In the long run to make it worth while to bring another suit. " tlial1 this did not constitute an estoppel, and In an .aotlon at law could have nO effect quel:\yioJ,1 of damages. ' , 6.SAJlfE7PLEADpIG.
The ckiclaratloD sHeg-edtbat defendant, "since the 1st of November, 1888, knowingly, willfully, and fraudulently offered for sale, and is now selling, glue in etc. B,eld that, as there was no contirt1tnndo with reference to the matter of selllng. only one actual sale could ,be proved under the ·common·law rule, which hall' not been changed by the Massacnusetts statutes relatinrto pleadings.
Error to the Circuit Court of the United States for the District of MasBach uset!s. Action bythlfRussia Cement Company against The lePage Company diuiUlges lor the wrongful use of the llllme II LePage" in to nection ,with glues manu{&ctured by defendant. The court ruled that defendant's use of the name was a violation of plaintiff's right$, and that only questi0!l for thejury was the amount of A verdi9t returned for $8,000" andjudgment entered thereOn. Defendant brings error, Reversed. , S.,HCJlryJ Hooper, (Eugtme" P, Chrver and J-Villiam a.,,(lt?yqweU, of coiln, ' ael,) for plaintiff in error." Oharles H. Drew anel Payson E. Tucker, for defendant in error. BeJore GRAY, Circuit Justice,.al1d COLTal1d PUTNAM, Circuit Judges. PUTNAM, Circuit,rlldgA. The court instrllctecl the jury, as a ,matter of lnw; that the words, "Mantlfl.lctured by Thp. LePage Corn'pany," on delendulIt's packages, were inJringemellts. If it was proper 'to instruct the jury to return a verdict for the plnintifi', it is unillJportant whether the court expressed -itself in that form or in the lorm which the opinion thnt theooul't correctly inwas al'tullUy used. this topio; and this, of course, renders uuimportaut all the other exceptious or the defendant below. uuless so tilr as they may touch the dalunges. ; . The tacts are the same as stated succjnctly in Cement Co. v. 206, 17N. E. Rep.304, (decide!} June 10, 18SS,} 'except the last step. which was taken subsequently ,to th;lt case. Wilest.ablished at Glom'ester the" uusiness of munufudnrliam M. ingand sellingJvtlfiousklnds' of which he pnton the market in connection with his own nllma, "LePnge i" nnd the same became known 'to'thetl'ade 11Ild pulJlicRs"'LePnge's Hlu'es,"hllving been exteusivcly ItlHt at home ancl abroad. 101880, LePage arid his associate formed a partnership under the Style of Russia Crment In.l882, !h",. was. .as the plaiiltiff below, and the assets ancl-good' will of its business, inoluding the tradexnarKs. to th.f$cof})<,Iratiorl; ,and an active part in the busiiless of the partnership its existence, became treasurer of on its orgil1lizatibp, held Waf offi¢euntil the au-
:pePnge,
THE LEPAGE
co.
fl. RUSSIA. CEMENT CO.
948
tumn of 1883, and continued active in the concern until February, 1886, when he sold all his stock, and·severed his relatioris thereto. It is to be noted, therefore,that the plaintiff below has a threefold right: First.· Whatever trade-marks were owned by LePage, or partnership known as Russia Cellwnt Company. Second. The good will which accompanied the trade-marks and the business, both by express contract and by implication oflaw. Menendezv. Holt, 128 U. S. 514,9 Sup. Ct. Rep. 143. Third. The fundamental right which every manufacturer and trader has at common law, and independently of all questions of trade-marks or good will, to be protected. against those who offer to the public products or merchandise simulated as his. Lawrence Manuf'g Co. v; Tennessee jllanuj'g 138 U. S. 537, 11 Sup. Ct. Rep; 396 j Chemical Co. v. Meyer, 139 U. S. 540, 547, 11 Sup. Ct. Rep. 625. It is equitable that a manufacturer or dealer. who has given reputation to any' article, should have the privilege of realizing the fruits of his labors by transmitting his business amI establishment, with the reputation which has attached to them, on his decease to his legatees or executors, or during his lifetime to purchasers; and it is also in accordance with the principles oflaw, and with justice to the that any including a surname, may be sold with the business or the establishment to which it is incident i· because, while it lDay be that individual efforts give them their valueat the outset, yet,afterwards, this is ordinarily made permanent as a part of the entire organization, or as apput'tehant to the locality in which the business is established, depends less on the individual efforts of theorigiand nator than on the combined result of all which he created. Kidd v. Johnson, 100 U. S. 617; Ohemical Co. v. Meyer, 139 U. S. 540, 548, 11 Sup. Ct. Rep. 625; Hoxie v. Chaney, 143 Mass. 592,10 N. E. Rep. 713; Cement Co. v. LePage, 147 Mass. 206, 17 N. E. Rep. 304. Chadwick v. CoveU,151 Mass. 190, 23 N. E. Rep. 1068, is properly distinguished in Chemical Co. v. Meyer. Trade-marks, good will, or rights to use the names ofindividuals, become, when sold, the property of the person to whom transferred, and do not thereafterwards rest on mere contract; and, without any specification in the instrument of transfer, and merely as inherent to the essential rights of property, they must, with all their incidents, be protected by the courts in the hands of the transferee against all assaultS and artifices. In Cement Co. v. LePage, il.bi supra, the supreme judicial court of Massachusetts said (page 211, 147 Mass., and page 306, 17 N. E. Rep.) that it did npt decide that LePage mi!';ht not use the words" Liquid Glue," or other appropriate words, to describe his product, or to state in that connection that he was himself the manufacturer. We have no to deal with the long line of authorities, commencing with Croft v. Day, 7 Beav. 84, and Holloway v. Holloway, 13 Beav. 209, and ending with Chemical Co. v. Meyer, ubi mpra,touching the ordinary inherent right of every person to the honest use of his own surname. These do not apply when the original right has been voluntarily part,ed, with, as in the case at bar, nor have they 'been extended to corporations which have appropriated surnamE's.for use in: connection with proprietary articles; while they uphold with
Co.,
a
FEPERAL REPORTER,
vol. 51.
fundamental doctrines of honesty aIld good faith as applied to this, branch of the law, and have been vigilant in searching out ftQ.ppunishil1 g evasions and artifices, even in connection with this primitiv:e,nght. Neither .are we embarrassed by Jilurnace Co. v. Le Barron, 127 115. The opinion in that case was aimed at a mere question 'offact, that is, whether the letters and numbers used on Qertain parts of were any part of the trade-mark in question. .The court held, as a matter of fact, that Qley were not. The court also ruled that, if in SOple from the vendees of the alleged infringer were deceived as to the origin of the goods, he was not responsible, using, howeyer, the following language: "But, 8S he publishes to the world the fact that he is the manufacturer of what he Bells, and does not attach to h.i8 goods any label or mark apt to deceivesutisequent purchasers from his vendees as to the origin of the goods, he cannot be regarded as infringing on the rights of the plaintiff." "J " . ' at bar wIll "be found to turn on the facts tbat tbe label or mark, used in this case, 80 far from being inapt to deceive subsequent purchfJsers, necessarily tellded, under the circumstances, to mislead tbe ,including sl;lbseqqent purchasers, and also that persons of orh@,nestly considering the natural results, must have they wOI;IIQ., so mislead. It is, however, the law that the fact that. tlle immediate vendees of one who infringes are themselves not deceived is ordinarily of no. consequence; and the offense is none the less. because the originalv;endors alld vendees may.all be parties to the fraud. . Wotherspoon v, Ourrie, L. R. 5 H. L. 508, 517, cited and ttpproved in Lawrence Manuj'g 00. v. Tenneasee Manuj'g Co., 138 U. S. 537, 11 Sup. Ct. Rep. 396. Als(> we may lay aside the hypothetical case of the pursuit by LePage in Gloucester of the local manufacture of and traffic in glue, dealing with only the neighborhood, under such circumstances that no presumption of fraud or injury could arise. There being no express stipulation to the contrary, it is possible there was nothing in the case at bar, as matters stood when LePage retired from the plaintiff corporation, which would have shut him out from a local truffic as above supposed. This proposition was discussed in Hoxie v. Chaney, 143 Mass. 592, 597,10 N. E. Rep. 713, and the retiring partner was permitted to continue business in his own behalf; but be was subjected, however, to cert,ain conditions which will be referred to again in another connection. While permitting this, the court (page 596, 143 Mass;, and page 716, 10 N. E. Rep.) distinguished certain difficulties which might arise under a supposed state of facts which exist in the case at barj among .others, sucb as might occur when the business was 110t local in its character, but extended over a considerable region or line of travel. The products of the Russia Cement Company are sold to customers and subcustomers throughout the Unit,ed States, to more than $60,000 annuallY', and necessarily, on account of their very peculiar character, go into the hands, first and last, of many hundreds of thousands of persons. oe,arlyall ignorant of the circumstances connected with their what is sUggested by the word. "LePage." This was the origin, !:(:';;
THE LEPAGE CO. V. RUSSIA CEMENT CO.
945
condition of things in existence, or 9Ontemplated, when LePage surrendered his interest in the Russia Cement Company, and therefore must be taken into consideration by the court in determining the rights of the parties. On the other hand, the products of The LePage Company, of the same general character, have also been scattered in the same way to the extent of over $50,000 annually to innumerable persons, who were necessarily likewise ignorant of their true origin. The difference is between dealing with a local community understanding all the circumstances, and dealing with the great public, scattered throughout the United States, with no opportunities of information, except what is communicated to them by the word "LePage" in combination with the word "glue." Neither is the question in this case merely one of simulating arbitrar: indications of the origin of merchandise, frequent in trade-marks. does not appear that either the shape of the packages, the color of th labels, or the peculiar adornments put upon them, or any arbitrary des ignations, form essential parts of what was left behind him by LeVage when he withdrew from the plaintiff corporation, or of what was transferred to it by the partnership; and as to all these the Russia Cement Company, lilO far as the case shows, reserves the right to modify ann change as the tastes of the public, or the supposed attractiveness of its packages, may from tjme to time require. The essential thing is its right to inform the public that it is in the exclusive possession of all . the advantages coming to it as the legitimate successor of the original formulator of "LePage's Glue," and is alone entitled to put on the market that product, supposed to be composed or manufactured with special skill, and known to come from the original and long-established concern. Bearing in mind the peculiar circumstances to which we have referred, especially the fact that both parties are dealing with the public in the manner explained, we hold that for this case there is no essential difference between the words" LePage's Glue" and the words" Glue made by LePage," or" Glue made by The LePage Company." It would be mere self-stultification for this oourt to assume not to see, what every practical person of intelligence must see, that for the innumerable persons dealing with this class of merchandise, or with such merchandise as the Day and Martin Blacking, covered by Croft v. Day, ubi 8upra, the WOl'Js "LePage's Glue," and "Glue Manufactured by LePage," or the worlh "Day and Martin's Blacking," and "Blacking Manufactured by Da} and Martin," mean, or soon come to mean, one and the same thing, and that both will inevitably be soon styled alike in the market. Independently of the particular principles of the law of trade-marks, it is the duty of the courts to protect the good will which the plaintiff below acquired from LePage, and its rights a!!;ail18t merchandise adapted by him to supplant its own. This duty is also aside from all questions of artifice or fraud actually intended, though there may have been sufficient to have justified the court in advising a verdict for the plaintiff below on this .ground also. v.51F.no.14-60
FEDERAL' REPORTES,
vol: 51.
'rhe'l1Pnge Company claims' that;' inasmuch as it owns a patent iSlluedto LePage, it is its privilege and: duty, underRev. St.§ tostttmpon its products' 'the names Of the patentee and of The LePage Cornpaily,hls assignee; Inasmuch asthis patent was 'applied for after the rights 'of the Russia CementCompa:ny accrued by the actiob. of LePage; it is at once apparent that those rights cannot be affected by any condition of law relating' to a patent also voluntarily acquired' by LePage himaeIf,even if the statute requited the patentee's name.' Moreover, the method of stating that the article ia patented was suchast<) aggravate the dffense of The Company, instead of excusing it The label on one ofthEH,o'ttH,is submitted iri proof contains the followhlg: The face of }Villiam N. LePage, a facsimile of his signature,il.nd the words, "'Wril'. N. LePage is the original in'ventor of preserved liquid fish glue,'" and atthe close follows: ''Improved process, pat. Oct. 26, 1886." Perhaps, except for the alleged artifices of LePage arid The'LePageCbmpariy, which,'iftruly stated, may have brol!ght a.bout a detriment to the Russia, Cement Company, now irremediable except by entirely refraining from thew6rd 'to' LePage" in any form inconnectiqn with gJtie'sold byhiIu or TheUPage Company, a limited use by the defendant below might be permissible nuder cettain circumstances. CltaneY,148;Mass.592, 597, 10 N. E. Rep. 713, the court permitted' Hoxie, notwit!:,!standing his unlawful use of the tra.de-·marks bel'Onging' tifChnney, to cantinue his own name for certain underconditions'statedj but n, saler insisted on in ThtrmP'8on V. Div. 35',affii'med in Montgomery v. Thomp8on, [1891] App. Cas. 2l7.; cited and approved by the court in Lawrence Mantl!'g Co. v.' %»'nessee Manuj'g"Cb., 138 8'.537, 550, 11 Sup. Ct. Rep.396, as follows: Joule& Sons had long brewed ale in tHe town, 'of in England, and their ale had become known as t'Storiell.le;" ,'The infringer established a brewery at Stone, for the fraudulent purpose of putting on the tnarkethis ale as that of the older brewers. The, infringer 'offered to submit to an injunction, provided the qualification was added: "So as to inrlUce the beliefthat the ale sold by"the defendant is the ale of the plain ift's." This qualification was refused, and the refusal by the court of appe!}l, and also by the house of lord,S. It is not necess8,ry ,however, to decide this propositionjand we only state it in ord'erth'lt,t it may not be inferred, from 'the omission to do so, that, we intend'togive countenance to any artifices ,whatSoever which will prevent the full restoration to the Russia Cement 'Company of its original rights; unimpaired 'and unprejudiced · ·, The plaintiff in error6ubmits that, in order to maintain this suit, it ' -is necessary to show tMt 1t knew of ora trade-mark, that it, intended to palm off its goods as'those 'of the Russia Cement Company, andthat the public WaS de,ceived thereby. This might be true, if the only' <lase shown' by. the proofs was that of an, actual pu rpose to mislead the public, to the injury oftbe 'Russia Cement Company; but, as we place the case on the proposition that, under the circulnstances, the use of the words "Manufactured by The LePage Company," in <connection
THE LEPAGE CO. t1.JI,USBIA CEMENT CO.
947
with the word "glue," is necessarily a. wrongful injury to the Russia Cement Company, which ought to have been foreseen by LePage and The LePage Company, we have not deemed it necessary to go into the controverted question of actual fraudulent intent or artifice, or to weigh the evidence 011 that point. Positive proof of fraudulent intent is not required where the proof of infringement is clear, as the liability of the inlringer arises from the fact that he is enabled to sell a sim ulated article as and for the one which is genuine. McLean v. l''leming, 96 U. S. 245, 253; Johnston v. Orr Ewing, 7 App. Cas. 219, 232; Browne on TradeMarks, (2d Ed.) § 508. The record shows that, subsequently to the state of facts shown in Oement 00. v. LePage, 147 Muss. 206, 17 N. E. Rep. 304, a corporation was formed in January, 1887, being the defendant below, taking first the name of LePage's l.iquid Glue & Cement Company. The original corporators were William N. LePage, his wife, and his counsel. The stock was taken by Mrs. LePage, except one share by her hUt>band, and four by the Counsel. October 20,1886, LePage took out a patent for an alleged improvement in the process of making fish glue, which was transferred to The LePage Company on its organization; and also, at the same time, there were transferred to the same corporation the business and plant nominally of Mrs. LePage, in whose name was commenced the manufacture and sale of fish glues in the summer of 1886, soon after LePage sold out his interest in the Russia Cement Company. From the time of its organization The LePage Company carried on, among other the business of manufacturing and selling fish claiming to use LePage's patentel) process; anu he (William N. LePage) continued at all times to be an olticer in the corporation, and active in its nll\nngement, and his wife to be the principal stockholder. It is not apparently maintained with positiveness that The TAlPage Cornpanyst:mds any better in this case than would have stood William N. Ltd'llge himself. Aside from the lact, which a jury might wt:ll find from the proofs in this case, that The Com pany am) the use of his wife's name were a mere cover for William N. LePage, and as to which we, of course, do not decide, it is certain that, under the circumstances, the court might well instruct the jury peremptorily that The LePage Company, by accepting the assignment of the patent from LePage. and by permitting him to control its business, has barreLl itself from denying that it is proceeding unuer his authurity anu at> hit> SUUUtlssor. Therefore it can have no greater rights than himself, and, so far as this case is concerned, stands exactly in his shoes. the folluwing citations relate to questions less broad than those at uar, yet they state very forcibly some of the underlying principles. In Seixo v. Prol'ezende, L. R. 1 Ch. AW. 192. HIli, the loru chancellor, Lord CRANWORTll, saiu: "I do Dot consldt>r the actual pbysical resl'mblance of the two marks to be thellole qUl>stionforconsideratiull. If tbegoods of a manufacturer have, from the mark or device i:Je blj,lllllW. known ·in lb., market by a particular name.l.thmk that the adupLion of auy wark which will cause
FEDERAL REPOR'tER,
voL 51.
his goods to beat' the same name in the market may be as much a violation of the rights of that rival as the actual copy of his device." A leading case in England is .that which commences as Orr Ewing &: Co. v. JohnBWn &: Co" 13 Ch. Div. 434, and closes with Johnston v. Orr
Ewing, .ubi Bupra.
.
In the court of .appeal numerous opinions were read, which were summarized in the reporter's notes as follows: . "If the trader I)ave acquired in the market a name derived from a part of the trade-mark which he affixes to them, a rival trader is not entitled to use a ticket which is likely to lead to the application of the same name to his goods, even thougb that name is not the only n'ame by which the goods of the first trader have been known, or though it 'has been always used in conjunction with some other words. "
was substantially affirmed in the h011se of lords, where the lord chancellor, Lord SELBORNE, said, (pages 225, 226:) "But, alt\lOugh the mer", of these two tickets could not lead ,allY one ,to rilistfike one of ,them ·for the other, it. easily happen that 'they might both be taken by natiVes of Aden or of to read and the ElIglish language, as equally symbolical of the plaintiffs' goods.' Toeuah 'persons, or at least to many of them; even if they took notice of the differences betweentbe two labels. it might probably appear that theSe ollly differences of ornamentation, posture, and other accessories, distinctive and .characteristic symbol substantially unchanged." Lord WArsON said, (pages'231, 232:) "ThereprodllctiOn of a prominent part of another 'merchant's trade-mark upol18new ticket does not pe1' 86 establish that the latter was prepared by its o,wner with a view to deceive, by himself seIling, or by enabling others to sell, bis goods as the manufacture of that other merchant. But no man, his has a right to adopt and use so much of his rival'sestabIished trade-mark as wiil enable any dishonest trader, into whose haXlds his own goods may come, to sell them as the goods of his rival." The plaintiff in. error claims that the letter from the attorney of the Russia Cement CompanY,of October 31, 1888, is an estoppel, or, at least, should have some weight on the question of damages;1 but it shows only a desire to avoid unnecessary litigation, and, so far from waiving any rights, insists upon them. Apparently counsel wrote under an expectation of results· as to which they have been disappointed; but, however that may be, the letter was given for no consideration, it cannot be shown that The LePage Company was misled by it, and it certainly contained a caution. It is possible that such a letter, coupled with evidence of laches, might have some effect on an accounting in equity; but ina suit at law it has none whatever. In Chffmlical 00. v. I Tho letter is as follows: "My DEAR BIR: The Russia Cement Company are not dis. posed to file a new bill ag-ainst your client's use of the Dame' LePage Company,' as long as theyl!;eep them!!elve/lsttiptly within their present lines. I have advised the Russia Company tllat the USII of.th"at name is a violation of their tights as heretofore defined by the decisions of theooui't, but they think that, in view of those decisions and tbe pUblicity which has been: given to them, the use of'their name, in the present manner, is nQt'likely, to do them harm enough in the long run to make it worth while to bring another suit. " .
THE CITY OF MACON.
949
Heyer, ubi BUpra, a very compromiaing letter waa held not to operate as an estoppel. 'itT e deem it necessary to consider only one of the exceptions as to the rule of damages, because our conclusion with reference to that supersedes all the otherB. The declaration alleges as follows: "Since the 1st day of November, 1888. knowingly, willfully, and fraudulently offered for sale, and is now selling, glue in packages," etc. There is no continuando with reference to the matter of seHing; so that, according to the common law, the plaintiff below could properly prove only one actual sale as an independent basis of damages. The defendant insisted at all necessary points on the enforcement of this rule, and exceptions were carefully·,jaken and allowed; so that this court, however much it may regret it, is compelled to meet this issue. There is no doubt ·that at common law the position of the defendant would be correct on this point, and the Massachusetts statutes relating to pleading have not changed this rule. Walk. Pat. (2d Ed.) § 435; Eastman v. Bodfish, 1 Story, 530; Kendall v. Brick Co., 125 Mass. 532. In the face of this objection, the plaintiff proved at the trial, by the defendant's treasurer, sales of infringing goods, between November 1, 1888, and November 30, 1889, amounting to $56,318.24. It cannot be doubted that this was a substantial element in' determining the verdict. This relieves us from considering whether or not,' in view of the fact that the plaintiff below persisted in proving transactions in various parts of the United States, he can llOW claim that his suit was based on any portion of the statute of Massachusetts which goes beyond the common law, ifthere bcsuch, or whether at common law the allegation in the declaration that defendant "offered for sale," which was accompanied with a proper continuando, would form an independent basis for damages, or whether either the statutes of Massachusetts or those of the United States, relating to this topic, recognize a rule that any Use of an infringing trade-mark short of actual sales can be made the basis of a suit at law. Judgment reversed, with costs, and case remanded to the circuit court, with directions to enter judgment for the plaintiff below for nominal damages and costs of that court, if plaintiff below so elects; otherwise to set aside the verdict, and take further proceedings not in.consistent with the opinion of this court.
THE CITY
OF
MACON.
BEDOUIN STEAM NAV.CO., Limited, v. THE CITY OF MACON (Oircuit Oourt oj Appea18, Fifth Oircuit. June 2S, 1892.)
a,l.
No. 35. :1. COLLISION-STEAlIIIIlBS-OVll:BTAKING VESSEL-SAVANNAH RIVER.
The large steamship Nedjed left her berth at Savannah, on the south side of the Savannah river, with tbe assistance of a tug, BIld started down the river. It was a list starboard,.wlI$ "B.Dlelling ,he bottom, · flood tide. She drew 19" feet, and steered badly. In pulltng from thwwbUrf sbe took an angle across tbe chan-