(38 Ind. A. 207) KINGAN & CO., Limited, v. OREM et al. (No. 5,465.)

(Appellate Court of Indiana, Division No. 1. June 7, 1906.)

1. APPEAL-AMOUNT OF RECOVERY-UNCONSTITUTIONAL STATUTE.

The statute on which right to recover is based being unconstitutional, and therefore absolutely void, plaintiff may not complain of the smallness of his recovery.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4035.] 2. GUARANTY-CONSIDERATION-PLEADING.

The complaint on a written guaranty of a past-due debt, which does not purport a consideration, not having averred facts showing a consideration, but merely having averred that the promise made 15 days after a sale to defendant by plaintiff's debtor was for a valuable consideration, which is but a conclusion of the pleader, authorizes no recovery, so that plaintiff may not complain of the smallness of his recovery.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Guaranty, § 99.]

Appeal from Circuit Court, Tipton County; J. F. Elliott, Judge.

Action by Kingan & Co., Limited, against William Orem and others. From the judgment, plaintiff appeals. Affirmed.

Kirkpatrick & Morrison and Oglebay & Oglebay, for appellant. Blacklidge, Shirley & Wolf, for appellee.

ROBINSON, C. J. Appellant's complaint against Orem, Chapman, and Gwinn is in two paragraphs. The first paragraph seeks to recover of Gwinn the value of a stock of goods sold to him by Orem and Chapman, on the ground that the goods were sold in bulk without complying with the act of 1901 regulating sales in bulk. The second paragraph avers: That on August 26, 1901, Orem and Chapman, as partners, were engaged in a retail grocery and meat business. That the firm was indebted to appellant $141.69 for goods sold and delivered to the firm at its request. That on the above date the firm sold to Gwinn their entire stock for $400 cash. That he, "on the 9th day of September, 1901, for a valuable consideration, promised and agreed to pay plaintiff's account herein set out in Exhibit A, filed with the first paragraph of complaint herein and made a part of the paragraph, by indorsement thereon in writing in the following words and figures, to wit: 'I guarantee the payment of this account. Geo. L. Gwinn. 9/9/01.'" That appellant accepted such promise and agreement as security for the payment of the account and relied thereon. That appellees have failed to pay the account, though demanded, and that the same is past due and unpaid. That Orem and Chapman individually and as a firm were on August 26, 1901, by reason of such sale rendered and became insolvent, and that each and the firm have since been and are now insolvent. It asks judgment against appellees. A demurrer to the second paragraph was overruled. Appel

lee Gwinn answered by general denial, and that the guaranty sued on in the second paragraph was given without any consideration. Orem and Chapman were defaulted. Upon a trial the court found in appellant's favor against the appellees for $25, and over appellant's motion for a new trial rendered judgment for that amount. Overruling the motion for a new trial is the only question argued.

The judgment rendered is in appellant's favor, and the only complaint made in this court is that the amount of recovery is too small. The argument of counsel is directed to the judgment as against Gwinn. A failure to assess a larger amount of recovery, may or may not be solely a question of fact. If, in a given case, there is a dispute as to the amount that should be recovered, the appellate court could not disturb a finding on the ground that the amount found to be due was too small; but if the evidence shows without dispute that a certain sum is due, if anything is due, whether the amount found to be due is too small may be a question of law. Paxson v. Dean, 31 Ind. App. 46, 67 N. E. 112. If the finding rests upon the first paragraph of complaint, appellant cannot be heard to complain that the amount of recovery is too small, for the reason that this paragraph is based upon the act of March 11, 1901 (Acts 1901, p. 505, c. 220), which act has been held unconstitutional. Sellers v. Hayes (Ind. Sup.) 72 N. E. 119. See, also, McKinster v. Sager (Ind. Sup.) 72 N. E. 854, 68 L. R. A. 273. As the law was invalid, there could be no recovery under it. As the act was unconstitutional, it was absolutely void and was inoperative for any purpose. Appellant was not entitled to a judgment in any amount on the first paragraph. In Strong v. Daniel, 5 Ind. 348, the appellant recovered a judgment upon which one Conover became replevin bail, and execution stayed 180 days. After that period had elapsed and a writ of fieri facias issued, an act of the Legislature provided that on all judgments which had been replevied under the then existing laws, but not fully satisfied, and on all judgments on which a stay had expired, and execution had been issued, and levied, or not levied, the execution debtor might replevy the same, in addition to the former stay, for six months after March 1, 1840. Under this act Daniel entered himself bail for the additional stay of execution. After the expiration of the six months another fieri facias was issued and levied on Daniel's land. In affirming a decree perpetually enjoining the sale of the land it was held that the act was unconstitutional and that Daniel was not estopped to set up the invalidity of the act under which he acted.

The second paragraph of complaint is based upon a written guaranty of a past-due account of Orem and Chapman. No attempt is made in the pleading to state any cause of action against Gwinn other than on the writ

ten guaranty. As the instrument upon which the complaint is founded does not of itself purport a consideration, the complaint should aver facts showing a consideration. This it fails to do. The pleading does aver the promise was for a valuable consideration; but this is the conclusion of the pleader, and it is the province of the court and not of the pleader to determine whether the consideration was a valuable one or not. The promise made by Gwinn was made 15 days after the sale by Orem and Chapman to Gwinn, and there is nothing in the pleading to show that this promise and the sale were a part of one and the same transaction. See Brush v. Raney, 34 Ind. 416; Leach v. Rhodes, 49 Ind. 291; Nichols v. Nowling, 82 Ind. 488; Wheeler v. Hawkins, 101 Ind. 486; Plunkett v. Black, 117 Ind. 14, 19 N. E. 537. As to Gwinn, the second paragraph of complaint did not state a cause of action. As the paragraph is insufficient to authorize a judgment in any amount against Gwinn there is no ground for complaint that the amount of recovery is too small. Appellant cannot be heard to complain of its own bad complaint, and a failure to render judgment in its favor on this paragraph gives it no right to a new trial.

Judgment affirmed.

(38 Ind. A. 279)

DARMAN v. DARMAN. (No. 5,772.) (Appellate Court of Indiana, Division No. 1. June 8, 1906.)

DIVORCE-TRIAL-DISCRETION OF COURT-RE

VIEW.

Much discretion is allowed to the trial court in actions for divorce, and the appellate court is not disposed to interfere with the trial court's exercise of its discretion in favor of the preservation of the family relation.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Divorce, § 571.]

Appeal from Circuit Court, Porter County; Willis C. McMahan, Judge.

Action by William H. Darman against Carrie Darman. From a judgment for defendant, plaintiff appeals. Affirmed.

Grant Crumpacker and William Daly, for appellant. Johnston, Bartholomew & Bartholomew, for appellee.

BLACK, J. In the suit for a divorce by the appellant, the husband, the court found and adjudged in favor of the wife, the appellee. It is contended that the finding was not supported by sufficient evidence. The parties were young, and they lived together as husband and wife but a few months, part of the time in the family of the husband's father, and the remainder of the time in the immediate neighborhood of that family. There was some evidence from which the court might have inferred that the appellant was, or permitted himself to seem to be, influenced in his conduct toward his wife by deference to the opinions and wishes of mem

bers of that family, disregarding to some extent the feelings and opinions of his wife, which possibly may have been somewhat unreasonable. There were some matrimonial bickerings, concerning which each party ought to have been, and possibly was, ashamed of his or her part therein; but they perhaps were controlled by foolish and stubborn pride, the husband seemingly not understanding and making due allowances for the weaknesses of the young wife, and not cherishing her as a sensible man would do.

Much discretion must be allowed to the trial court in such cases. The interests of society in the marital union should be kept in view, and the bond of matrimony should not be dissolved because of marital difficulties which may be remedied consistently with the honor and happiness of both parties. In this case the only charge was that of cruel treatment, and we could scarcely have agreed with the trial court if it had granted a divorce upon the evidence in the record. Certainly we are not disposed to interfere with the court's exercise of its discretion in favor of the preservation of the family relation.

Judgment affirmed.

(191 Mass. 344)

GEORGE G. FOX CO. v. GLYNN et al. (Supreme Judicial Court of Massachusetts. Suffolk. April 3, 1906.)

1. GOOD WILL-PROPERTY.

The good will of a business of manufacturing and selling a particular kind of bread is property subject to protection from infringement.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Good Will, § 1.]

2. TRADE-MARKS AND TRADE-NAMES-PROTEC

TION.

Where complainant conceived the idea of manufacturing a particular kind of bread, and used, in combination with the word "Creamalt," to indicate his bread, a peculiar size, shape, and condition of the surface of the loaf, producing a peculiar visual appearance, all of which were adopted when not in use by any one else, and such combination was neither economical nor necessary to be used by others, complainant was entitled to protect such trade-mark from infringement.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 6, 19.]

3. SAME UNLAWFUL COMPETITION.

Complainant conceived the idea of manufacturing bread from milk and malt, and for the use of his business coined the word "Creamalt" as a trade-name, which he registered as a trade-mark, such name, printed in blue ink on a label of a certain size and color, being pasted on each loaf of bread. Each loaf was of a peculiar shape, size and having a broken surface caused by the injection of steam into the ovens during the baking. Defendants thereafter manufactured a similar bread and copied, first, the form of the loaf, with the words "Crown copied the surface appearance of the loaf, which Malt" similarly printed thereon, and finally also operated to deceive the public. Held, that defendants' acts constituted unlawful competition, which complainant was entitled to restrain.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, $$ 81, 86.1

4. SAME-WHOLESALE DEALERS.

Where wholesale dealers place goods bearing a fraudulent trade-mark in the hands of retailers, with which the retailers are enabled to deceive the public, and palm off such goods for those of another manufacturer, the wholesale dealers are liable to an injunction, though they do not mislead or intend to mislead the retail dealers to whom they sell.

Report from Supreme Judicial Court, Suffolk County.

Bill by the George G. Fox Company against one Glynn and others to restrain defendants' alleged violation of a trade-mark. Case reported for the determination of the full court. Decree for plaintiff.

Oliver Mitchell, Chas. D. Woodberry, and Jos. T. Brennan (Roberts & Mitchell, of counsel), for plaintiff. J. W. Keith and E. D. Sibley, for respondents.

KNOWLTON, C. J. The plaintiff corporation is a wholesale baker, and it brings this bill against a retail baker, and a firm of wholesale bakers, alleging unfair competition in trade by the defendants against the plaintiff, and infringements of the plaintiff's registered trade-mark.

The bill avers that the plaintiff originated a new kind of bread, in which milk and malt were combined, and that, in order to identify it before the public, it adopted distinctive features of shape, size, proportion, and condition of surface, resulting in a distinctive visual appearance. For this novel bread the plaintiff coined and adopted the word "Creamalt" as a trade-name, and registered it in the office of the Secretary of the com

monwealth as a trade-mark. The plaintiff's loaf bore the plaintiff's trade-mark, printed in blue ink upon a label of a certain size and color. The alleged unfair competition of the defendants consists in the manufacture and sale of a loaf of bread under the name "Crown Malt," which is practically identical in its visual appearance with the plaintiff's "Creamalt" loaf. The master found the above facts, and, among others, made further findings as follows: "This 'Creamalt' bread was steam glazed; that is to say, the bread was baked in an oven, into which live steam was injected during the process of baking, with the result that the upper surface of the bread, to a slight depth, was chemically affected, the starch therein being converted into dextrine, with the result that the surface became glazed and crackled in appearance. On each and every 'Creamalt' loaf there was affixed a small white label, printed in blue ink, and bearing the name 'Creamalt,' and the words 'Made with milk and malt, George G. Fox Company, Charlestown;' that, prior to said date, to wit, January 1, 1904, there was no bread of any kind known as 'Creamalt'; that there was no bread in this market advertised or known to the public to contain milk and malt; that there was no bread commercially successful containing milk and malt;

that there was no bread made having the distinctive visual appearance adopted by the complainant; that the peculiar shape of 'Creamalt' bread is uneconomical from the standpoint of the consumer, for the reason that it does not cut in uniform slices: * that the complainant extensively advertised its 'Creamalt' bread by circulars,

and that said bread quickly became popular; * * that all 'Creamalt' bread, made and sold by the complainant, has the distinctive visual appearance shown in Exhibit B, and that all such loaves were steam glazed and had 'Creamalt' labels affixed; that the 'Creamalt' branch of the business is a most valuable part of its business and is of large value; that the public and the trade called for the complainant's bread, either by the name 'Creamalt' or by asking for 'the oval loaf,' and have learned to recognize complainant's 'Creamalt' bread by its general visual appearance; that

about the 1st of October, 1904, the defendants Mackenzie & Connor placed on the market, being practically the same market as that of the complainant, an oval loaf of white bread identical in size, shape, proportions, and general visual appearance with the bread of the complainant, except that no label was affixed to the loaves, and except as to the glaze, which was a corn starch wash slightly different in effect from the steam glaze, consequent upon the fact that it had no chemical action upon the surface of the bread, and gave no crackle; that in December, 1904, Mackenzie & Connor began to use a steam glaze on their bread; that in

January, 1905, they adopted the name 'Crown

Malt' for their bread; that beginning in May, 1905, and continuously since, they have affixed to each and every loaf of their 'Crown Malt' bread a small white label, printed in blue ink, bearing the words 'Crown Malt. Made only by Sanderson Baking Company,' and a pictorial representation of a crown;

that at the time of placing their oval loaf on the market said Mackenzie & Connor knew of the complainant's distinctive loaf, and made their 'Crown Malt' oval loaf in imitation of complainant's 'Creamalt' loaf, and in response to a demand caused by the sale of complainant's 'Creamalt' loaf, and that the changes the defendants Mackenzie & Connor have made since first placing their oval loaves on the market have tended to increase the similarity of their loaf to the loaf of the complainant; and I find from such gradual approximation, and from all the evidence in the case, that said defendants had a fraudulent intent to appropriate to themselves the benefit of the public demand for complainant's novel and visually distinctive loaf; * that the 'Crown Malt' oval loaf of the defendants Mackenzie & Connor has been substituted and palmed off as and for the 'Creamalt' bread of the complainant, by the defendant Glynn and other dealers to whom defendants Mackenzie &

Connor sold their 'Crown 'Crown Malt' bread; *** that the trade-name and trademark 'Crown Malt' is so similar to the tradename and trade-mark 'Creamalt,' in connection with a loaf of bread, as to be likely to create confusion, mislead the public and render easy substitution by the dealers, and that the complainant's trade-name and trademark 'Creamalt' have been infringed by Mackenzie & Connor's use of the trade-name

and trade-mark 'Crown Malt'; * * * that the 'Creamalt' loaf of the complainant is novel and distinctive; that the demand of the public for this bread was created by the complainant, and that the shape, proportions, and color have come to be principally, if not exclusively, relied upon by ordinary purchasers as the means of identifying complainant's 'Creamalt' bread; and that the oval loaf put out by the defendants amounts to a representation to the consuming public that defendants' oval loaf is complainant's 'Creamalt' loaf; * * * that the defendants Mackenzie & Connor, having knowledge of the fact that their bread was and had been sold by the defendant Glynn and others as and for the bread of the complainant. continued to make and sell their oval loaf, and stand upon their right; that there is no necessity for the defendants Mackenzie & Connor to make their bread of the peculiar and distinctive appearance of complainant's 'Creamalt' bread, apart from the desire to benefit by the demand created by the complainant for its 'Creamalt' bread, and said defendants can and do successfully make and sell their bread in another shape."

These findings show that the plaintiff has a valuable good will in the business of manufacturing and selling this peculiar kind of bread. This good will is property, and is a valuable asset in the plaintiff's business. For cases recognizing property in good will, see Cruttwell v. Lye, 17 Vesey, 335; Hitchcock v. Coker, 6 Ad. & E. 438; Knott v. Morgan, 2 Keen, 213; Potter v. Com. of In. Rev., 10 Ex. 147; Weddaburn v. Weddaburn, 22 Beav. 84; Griffith v. Kirley (Mass.) 76 N. E. 201; Hutchinson v. Nay, 183 Mass. 355, 67 N. E. 601; Id., 187 Mass. 262, 72 N. E. 974, 68 L. R. A. 186, 105 Am. St. Rep. 390; Moore v. Rawson, 185 Mass. 264, 70 N. E. 64; Crossman v. Griggs, 186 Mass. 275, 71 N. E. 560. For cases recognizing the right in connection with a trade-mark, trade-name, or other designation of origin, see Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Flagg v. Holway, 178 Mass. 83, 59 N. E. 667; Samuels v. Spitzer, 177 Mass. 226, 58 N. E. 693; Marsh v. Billings, 7 Cush. 322, 54 Am. Dec. 723; Hildreth v. McDonald, 164 Mass. 16, 41 N. E. 56, 49 Am. St. Rep. 440; Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304, 9 Am. St. Rep. 685; Viano v. Baccigalupo, 183 Mass. 160, 67 N. E. 641; Regis v. Jaynes & Co., 185 Mass. 458, 463, 70 N. E. 480; Cohen v. Nagle (Mass.) 76 N. E. 276.

This good will is connected with, and dependent upon, the use of the name "Creamalt" and the combination of features in the manufacture of the bread which give it a distinctive visual appearance unlike that of any other bread in the market. These indicate the place of manufacture of the loaves as they are sold, and give them a peculiar value in the market. The right to have the benefit of the reputation of its products, which are designated as above, is important to the plaintiff, and it is a right of property which the courts will guard as carefully as it would visible, tangible property. This right necessarily includes a right to the use of the trade-name, trade-mark or other proper designation of its bread, thus acquired by appropriation and public recognition. Any one who attempts to deprive one of such a right, by palming off goods of his own manufacture for others which have acquired a valuable reputation, is a wrongdoer whose fraudulent attempt will subject him to the restraining and retributive orders of the court.

The practical difficulties which arise in such cases come from conflicting rights, where the plaintiff's right to use his chosen means of designation of his products is not exclusive. One way of designating articles of manufacture as coming from a particular maker is by a trade-mark. This, to be an effectual protection to one who has adopted and used it, must be something to which the user may have an exclusive right. It, therefore, cannot be anything to the use of which, for a similar purpose, others may also have a right. The courts will not recognize trademarks which are not chosen in such a way as not to conflict with the rights of others to use common names and things, like the names of persons and places, and of colors and forms with which all are familiar. But goods often come to be known as of a particular manufacture, and acquire a valuable reputation, by means of a designation that could not be made the subject of a trademark, because others may have occasion to make some use of the words or marks chosen. It is important to every one who has acquired a valuable good will in his business in that way, to have it protected, as his other property is protected. It is also important to the. public to be able to recognize articles of manufacture as produced by a known and trustworthy maker, through the appearance by which they have come to be known. courts, therefore, have two reasons for recognizing and protecting trade-names, and other similar means of designation, whenever they accompany articles of manufacture. One is to save to the manufacturer the benefit of the good will which belongs to his products through the use of trade-name or other designation, and the other is to protect the public from frauds that might be practiced by the sale of imitations. The foundation of the jurisdiction of the courts in these cases is the right of the plaintiff,

who asks for relief from the frauds of those who seek to appropriate that which rightfully belongs to him. Such a fraud need not be an active fraud, in any other sense than in the willful refusal to recognize the right of the party, who has acquired a reputation for his goods, to have the benefit of the confidence which he has earned.

If the plaintiff in such a case has acquired for his manufactures a valuable reputation in the community, in connection with a trade-name, or with other peculiarities by which they are known, and if the defendant has no right that will be interfered with to his detriment by a protection of the plaintiff's rights, the result is easily reached. The defendant is enjoined from any use of the name or other indications of origin employed by the plaintiff. If some of these names or indications belong to the public, for any proper use, and the defendant has an interest to employ them, it becomes necessary to give the case such a direction, if possible, as will enable each so to enjoy his right as not to interfere with the right of the other. If that is not possible, their rights must be adjusted on on equitable principles, having proper regard to the interests of both. The cases in which the plaintiff can have no relief are those in which the right of the defendant to the use of the name is as important as the right of the plaintiff to have all the benefits, pertaining to his business, which he seeks to retain. In such a case the defendant does not fraudulently or wrongfully appropriate the plaintiff's property, although he may obtain an advantage from the good reputation of the plaintiff's products. Cases showing the general right of a manufacturer to protection in a case like the present are the following: Knott v. Morgan, 2 Keen, 213; Garrett v. Garrett, 78 Fed. 472, 24 C. C. A. 173; Reddaway v. Banham (1896) App. Cas. 199, 204; Saxlehner v. Apollinaris Company, 1 Ch. Div. (1897) 893, 899; Baker v. Baker (C. C.) 77 Fed. 181; Brewing Association v. Clarke (C. C.) 26 Fed. 410; Von Mumm v. Frash (C. C.) 56 Fed. 830; Cook & Bernheimer Co. v. Ross (C. C.) 73 Fed. 203; Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am St. Rep. 57; Hildreth v. McDonald, 164 Mass. 16, 41 N. E. 56, 49 Am. St. Rep. 440; New England Co. v. Marlborough, 168 Mass. 154, 46 N. E. 386, 60 Am. St. Rep. 377; Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Samuels v. Spitzer, 177 Mass. 226, 58 N. E. 693; Flagg v. Holway, 178 Mass. 83, 59 N. E. 667; Viano v. Baccigalupo, 183 Mass. 160, 67 N. E. 641; Cohen v. Nagle (Mass.) 76 N. E. 276. The foundation of the plaintiff's right is the fact that the combination of name, size, shape, and condition of surface, producing a peculiar visual appearance, were all adopted by the plaintiff when not in use by any one else, and are such

a combination as no one else needs to use. The shape is found to be unusual, and uneconomical for cutting. The general right of the defendants, to use any size or shape or condition of surface that they choose does not give them a right to adopt a combination of these, which will mislead the public, to the plaintiff's detriment and their own advantage. New England Co. v. Marlborough Co., 168 Mass. 154, 46 N. E. 386, 60 Am. St. Rep. 377; Reddaway v. Banham (1896) App. Cas. 199; Saxlehner v. Apollinaris Co., 1 Ch. Div. (1897) (1897) 893, 899; Enterprise Manufacturing Co. v. Landers, 131 Fed. 240, 65 C. C. A. 587; Putnam v. Bennett (C. C.) 43 Fed. 800; Buck's Stove & Range Co. v. Kiechle (C. C.) 76 Fed. 758; Sterling Remedy Co. v. Spermine Medical Co., 112 Fed. 1000, 50 C. C. A. 657; Globe-Wernicke Co. v. Brown, 121 Fed. 90, 57 C. C. A. 344; Elliott & Co. v. Hodgson, 19 Rep. Pat. Cas. 518; Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57; Cohen v. Nagle (Mass.) 76 N. E. 276. If it were necessary for them to adopt such a combination, it could only be permitted, after the plaintiff had acquired a valuable reputation in connection with it, on condition that it be accompanied by a designation or statement plainly showing that the defendants' bread was not of the plaintiff's manufacture. Waltham Watch Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. Rep. 263; Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57; Garrett v. Garrett, 78 Fed. 472, 478, 24 C. C. A. 173.

The difference between the right to the use of a trade-name or other similar designation acquired in this way, and a technical trade-mark, is that, while the trade-name or other designation, like a trade-mark, is attached to the manufactured article, and accompanies it in the market, it may be of such a kind as not to make the right exclusive. But the findings of the master show that the defendant's legitimate business can be properly conducted without giving his loaves this distinctive, misleading appearance. It is not true that the wholesale dealers can successfully defend on the ground that they do not mislead or intend to mislead the retail dealers to whom they sell. It is enough to require an injunction, if they knowingly place an instrument of fraud in the hands of a retailer, with which he may deceive the public. New England Co. v. Marlborough, Co., 168 Mass. 154, 46 N. E. 386, 60 Am. St. Rep. 377; N. K. Fairbank Co. v. Bell Co., 77 Fed. 869, 23 C. C. A. 554; Hostetter Co. v. Becker (C. C.) 73 Fed. 297; Fairbank v. Luckel, etc., Co., 102 Fed. 327, 42 C. C. A. 376; Lever v. Goodwin, 36 Ch. Div. 1.

The master's finding that the words "Crown Malt" bear such a close resemblance to the plaintiff's trade-name and trade-mark "Creamalt," as to be likely to promote frauds