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WALDO, J. Counsel for both parties argued this case on the view that the doctrine of constructive notice was to govern the court in determining the question of fraudulent intent on the part of the grantees, Coolidge & McClaine. Counsel apparently had not seen the recent cases of Stearns v. Gage, 79 N. Y. 102, and Parker v. Conner, 93 N. Y. 118, where the doctrine is held on the statute, of which ours is a copy, that where a valuable consideration had been paid, actual notice on the part of the grantee of the grantor's fraudulent intent is necessary to avoid the conveyances to creditors and others, under which term "others" Heneky is included. These cases hold that in such case constructive notice is not sufficient; that actual notice is necessary to make the grantee a party to the fraud. Actual notice need not be established by direct proof. The fact of notice or knowledge may be inferred from circumstances. Under this view of the law, the question to be determined is, did the grantée in fact know or believe that the grantor intended to defraud his creditors? On the sound principle, and particularly on the wording of the statute, the doctrine of these cases ought to be followed.
The finding of the court as to the intent of Smith in making the conveyance ought not to be disturbed. The judgment once obtained against him, however unjustly, the same rule must govern as though Heneky's claim was founded on the highest consideration. The course of the law in its subsequent steps falls alike on the just and the unjust.
The findings of the court, however, as to the liability of the respondents, cannot be altogether sustained. For McClaine there is no escape; for he had actual notice that Smith intended to put his property beyond the reach of Heneky on execution, if Dolan's testimony is to be taken as to the conversation with McClain under the stairs. That McClaine himself does not in effect deny the fact of this conversation, but impliedly admits it, is beyond a doubt. No other legitimate interpretation can be put on his answers when questioned as to the conversation related by Dolan. His belief, subsequently, at the time the deed was delivered, that the suit would be compromised, will not relieve him, as the case of Avery v. Johann, 27 Wis. 246, 250, shows.
As to Coolidge the case is different. If A. has a cause of suit against B., and B. goes to C. and offers to sell him the whole of his real estate, the fact that C. knows of the existence of the cause of suit against B., or of the pendency of an action against him, and that the effect of such transaction may be to enable B. to defeat the satisfaction of any judgment A. may recover against B., will not, of itself, make C. a party to B.'s fraud, if such there be, under any view of the law. In this case, however, there are facts in evidence probably calculated, under the doctrine of constructive notice, to put Coolidge on inquiry. But proof of actual knowledge is wanting, or of facts from which actual knowledge may certainly be inferred. Hence he can
not be made liable. This is the conclusion on this part of the case that seems most reasonably to follow from this view of the law as applied to the facts in proof.
The decree will therefore be affirmed so far as the same affects Coolidge, and reversed as to McClaine; and it is accordingly so ordered.
See Lewin v. Hopping, ante, 73, and note on 75-82.
(11 Or. 322)
DUNIWAY PUB. Co. v. NORTHWEST P. & PUB. Co.
March Term, 1884.
No intentional fraud being alleged or shown, held, that the "Northwest News" did not infringe on the title the "New Northwest," and would not be prohibited by injunction.
Appeal from Multnomah county.
Rufus Mallory, for appellant.
Joseph Simon, for respondent.
WALDO, J. This cause turns on the question whether the name the "New Northwest," as the title of a weekly newspaper published in the city of Portland, is pirated by the employment of the name the "Northwest News" for the title of a weekly newspaper published by defendant in said city. The New Northwest is the title of a weekly newspaper which has been published in Portland since the year 1871. The Northwest News is the title of a daily and weekly newspaper first published in the same place in January, 1883. The publishers of the New Northwest, believing the name chosen for the new paper an infringement of their exclusive right to the name by which their periodical was known to the public, made an application to the circuit court for an injunction to restrain the use of the title the "Northwest News" as the title of defendant's periodical. The complaint was accompanied by affidavits and sundry exhibits setting forth the facts relied on to sustain the application.
The allegations of the answer, so far as we deem it necessary to consider them, denied that the resemblance of the name of the defendant's publication to that of the plaintiff's was such as to constitute the infringement alleged. The answer was treated substantially as a demurrer to the complaint, and was sustained by the circuit court, and the complaint dismissed. The question before us, therefore, is whether the complaint, with the affidavits and exhibits attached to it, stated facts sufficient to constitute a cause of suit.
The right of the publishers of the New Northwest to the title of their periodical as a trade-mark we deem to have been established. However, a brief statement of the law applicable to the case will show that there are no grounds for an injunction. "Chancery protects trade-marks upon the ground that a party shall not be permitted
to sell his own goods as the goods of another; and therefore he will not be allowed to use the names, marks, titles, or other indicia of another by which he may pass off his own goods to purchasers as the goods of another." McLean v. Fleming, 96 U. S. 245. "In all cases where rights to the exclusive use of a trade-mark are invaded, the essence of the wrong consists in the sale of the goods of one manufacturer or owner as those of another." Osgood v. Allen, Holmes, C. C. 194.
In Levy v. Walker, 10 Ch. Div. 436, it is said:
"The sole right to restrain anybody from using any name that he likes in the course of any business he chooses to carry on is a right in the nature of a trade-mark. That is to say, somebody has a right to say, You must not use a name, whether fictitious or real, or a description, whether true or not, which is intended to represent, or is calculated to represent, to the world that your business is my business, and therefore deprive me, by a fraudulent misstatement of yours, of the profits of the business which would otherwise come to me.' That is the sole principle on which the court interferes. The court interferes solely for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else. It does not interfere to prevent the world outside from being misled into anything." Cited in the note to Robertson v. Berry, 33 Amer. Rep. 337; S. C. 50 Md. 591.
No fraudulent purpose on the part of the defendant to pirate the plaintiff's trade-mark is alleged in the complaint, and at the argument plaintiff's counsel disclaimed that any such purpose existed in fact. But in Coffeen v. Brunton, 4 McLean, 519, it was declared that intentional fraud is not necessary to entitle the plaintiff to protection. The point had been previously ruled the same way in Millington v. Fox, 3 Mylne & C. 338, cited in Taylor v. Carpenter, 2 Woodb. & M. 1. But in such case the title of the defendant's paper must so closely simulate that of the plaintiff's that an infringement may be declared by the court as matter of law, or else the simulation must be proven as a fact. It is clear that the titles are sufficiently distinct to prevent the court declaring an infringement by mere inspection of the titles. It must be established, if at all, by extrinsic evidence.
But the facts set out in the complaint and affidavits and exhibit do not show any loss of trade. Inconveniences and annoyances from mistakes in the names of the two papers constitute no ground for an injunction. There must be actual injury to the sale of the plaintiff's paper. It does not appear that subscribers to the Northwest News in eastern Oregon and in Walla Walla, referred to in one of the affidavits, subscribed to the defendant's paper believing they were subscribing to the plaintiff's. Had such been the fact it could have been easily shown by an affidavit of a party so misled. In Snowden v. Noah, Hopk. 396, S. C. 14 Amer. Dec. 547, there was a closer resemblance between the titles of the two papers than there is in this case. The title of the first was the "National Advocate," and of the second the "New York National Advocate." Yet an injunction was refused because the New York National Advocate did not claim to be the same paper as the National Advocate, and no intention to
defraud existed. In Osgood v. Allen, Holmes, C. C. 185, the title of complainant's paper was Our Young Folks, an illustrated magazine for boys and girls, and of the defendant's, Our Young Folks' Illustrated Paper. Both were illustrated periodicals for the young,-the one a monthly, the other a fortnightly. Intentional deception was charged, but the court refused to order an injunction unless deception in fact was established.
It is unnecessary to consider additional grounds of defense urged by defendant's counsel, since, conceding these points to the plaintiff, the authorities cited are decisive in favor of the defendant, as the case has been presented, and the decree pronounced must accordingly be affirmed.
(11 Or. 208)
FOREDICE v. RINEHART.
October Term, 1883.
1. REPLEVIN-DESCRIPTION OF PROPERTY.
Where the description of the thing or property claimed in an action in replevin is reasonably certain, it is sufficient.
2. SAME-WRIT-EXECUTION OF.
The officer is not obliged to execute a writ of replevin unless somebody attend and point out the thing or property he is to deliver.
Appeal from Union county.
·Bonham & Ramsey, for appellant.
J. A. Stratton, for respondent.
LORD, J. This was an action of replevin to recover a certain quantity of flour, which the plaintiff alleges the defendant wrongfully and unlawfully took from his possession, and still unlawfully withholds from him. The answer denies these facts, and, upon issue being joined, the trial resulted in a verdict in favor of the plaintiff, upon which the court rendered judgment for the plaintiff "for the return of 16 2-15 barrels of flour in sacks, the property described in the complaint, and, in the event that said 16 2-15 barrels of flour cannot be found, that the plaintiff have judgment for the value thereof, to-wit, the sum of $121," etc. The defendant moved for judgment non obstante, which being overruled, the cause comes to this court on appeal.
It appears by the record in this case that no steps were taken to secure the immediate delivery of the property by making the affidavit and giving the undertaking required for that purpose. Code Or. §§ 130-133. We must conclude, therefore, upon the finding of the jury, and the judgment of the court upon the record certified to us, that the defendant retained the possession of the property found to have been wrongfully taken from the plaintiff.
The principal objection is as to the sufficiency of the description of the property. It will only be necessary to refer to this briefly, for reasons which hereafter will appear manifest. There can be no doubt
but that an exceedingly strict rule of practice formerly prevailed in regard to the description of property in replevin, but of late years the stringency of this rule has been much relaxed. Root v. Woodruff, 6 Hill, 418; Farwell v. Fox, 18 Mich. 169. The description goes to the identification of the thing,—the property claimed,-and when that is done with reasonable certainty, this object is accomplished, and the purpose of the law subserved. Whatever goes beyond this would seem to be needlessly stringent, and subserve no good purpose. Now, the flour in question is described as in sacks, a part of which was branded with Caveniss & Sterling's brand of Island City Mills, and the other marked with a brand of the mill at Weston, and, considering the nature of the subject to be described, there would seem to be in the description as reasonable a degree of certainty as the nature of the subject will admit of. But it is said that there ought to be such a description of the property as would enable the officer with his writ alone to distinguish it from other property of the same kind; but in Warner v. Aughenbaugh, 15 Serg. & R. 11, the court say: "That officer is not obliged to execute the writ unless somebody attend to point out the things he is to deliver." Taylor v. Wells, 2 Saund. 74a, note 1. Nor in practice is he usually expected to do this, but the plaintiff, or some one on his behalf, points out the goods or property which has been taken from him, and to which his affidavit or judgment relates. Farwell v. Fox, 18 Mich. 169; Warner v. Aughenbaugh, 15 Serg. & R. 11; Ruch v. Morris, 28 Pa. St. 249. "Barrels of flour" may be a proper description of flour in bags, because the common usage of trade in many parts of the country warrants it. Wells, Repl. § 180. In Farwell v. Fox, supra, the action was in replevin for six oxen, and the writ and declaration described them as "six oxen," and the same objection was interposed as here, but the court held the declaration sufficient. So, too, in Onstatt v. Ream, 30 Ind. 260, where the description in the complaint was of "one white shoat," and a motion was made to set aside the cause of action because the description was not specific enough, and the court held the complaint good, and the description of the property sufficiently definite. But it is hardly necessary to go further into an examination of the authorities to show that there is no fault in the complaint. The fact is, the defendant is in no position to interpose this objection, when the record shows him to have retained the possession of the very property for which this action is brought. In Ruch v. Morris, supra, the court say:
"A declaration in replevin must be certain to a general extent, and the reason of the rule is that the sheriff may know, with reasonable certainty, when a retorns habendo comes to be executed, what he is to deliver, though he is entitled upon such writ to have the assistance of the defendant to point out the goods. But where the defendant interposes a claim property bond, and keeps the goods, he has not only individuated them, but he has no reason for objecting to indefiniteness of description. Whatever may be the result of the suit, it can give him no writ to the due execution of which a more minute description would be necessary. He has got the specific property, and minute