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to "John Turton & Sons." Some confusion had arisen, and plaintiffs contended that there was no necessity for defendants to use their own names.
said: "Names of such articles cannot be | took in his sons and changed the firm name adopted as trademarks, and be thereby appropriated to the exclusive right of any one; nor will the incorporation of a company in the name of an article of commerce, without other specifications, create any exclusive right to the use of the name."
The principle that one corporation is not entitled to restrain another from using in its corporate title a name to which others have a common right, is sustained by the discussion in Columbia Mill Co. v. Alcorn, 150 U. S. 460, 37 L. ed. 1144, 14 Sup. Ct. Rep. 151, and is, we think, necessarily applicable to all names publici juris. American Cereal Co. v. Eli Pettijohn Cereal Co. 72 Fed. 903, 22 C. C. A. 236, 46 U. S. App. 188, 76 Fed. 372; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co. 142 Ill. 494, 30 N. E. 339; Monarch v. Rosenfeld, 19 Ky. L. Rep. 14, 39 S. W. 236.
It is said that the use of the word "Remington" in the name "RemingtonSholes" was unnecessary, as if necessity were the absolute test of the right to use. But a person is not obliged to abandon the use of his name or to unreasonably restrict it. The question is whether his use is reasonable and honest, or is calculated to deceive.
"It is a question of evidence in each case whether there is false representation or not." Burgess v. Burgess, 3 De G. M. & G. 896.
The circuit court of appeals in the present case quotes with approval from the concurring opinion of Wallace, J., in R. W. Rogers Co. v. William Rogers Mfg. Co. 17 C. C. A. 576, 35 U. S. App. 843, 70 Fed. 1019, that "a body of associates who organize a corporation for manufacturing and selling a particular product are not lawfully entitled to employ as their corporate name in that business the name of one of their number when it appears that such name has been intentionally selected in order to compete with an established concern of the same name, engaged in similar business, and divert the latter's trade to themselves by confusing the identity of the products of both, and leading purchasers to buy those of one for those of the other. The corporators chose the name unnecessarily, and having done so for the purpose of unfair competition, cannot be permitted to use it to the injury of the complainant."
This, of course, assumes not only that the name selected was calculated to deceive, but that the selection was made for that purpose.
In Turton v. Turton, L. R. 42 Ch. Div. 128, plaintiffs had carried on the iron business as "Thomas Turton & Sons." Defendant began the same business as John Turton, then traded as John Turton & Co., and finally
Lord Esher said: "Therefore the proposition goes to this length: That if one man is in business, and has so carried on his business that his name has become a value in the market, another man must not use his own name. If that other man comes and carries on business he must discard his own name and take a false name. The proposition seems to me so monstrous that the statement of it carries its own refutation."
And Lord Macnaghten said in Reddaway v. Banham  A. C. p. 220: "I am quite at a loss to know why Turton v. Turton was ever reported. The plaintiff's case there was extravagant and absurd." And see Meneely v. Meneely, 62 N. Y. 427, 20 Am. Rep. 489; Meriden Brittannia Co. v. Parker, 39 Conn. 450, 12 Am. Rep. 406.
In our opinion the Remingtons and Sholes made a reasonable and fair use of their names in adopting the name "RemingtonSholes" for their machine, and in giving that name to the corporation formed for its manufacture and sale.
The formation of a corporation as an effective form of business enterprise was not only reasonable in itself, but the usual means in the obtaining of needed capital. And as Wallace, J., said: "It was natural that those who had invented the machine, and given all their time and means in introducing it to the public, when they came to organize the corporation which was to represent the culmination of their hopes and efforts, should choose their own name as the corporate name. In doing so I think they were exercising only the common privilege that every man has to use his own name in his own business, provided it is not chosen as a cover for unfair competition. They did not choose the complainant's name literally, or so closely that those using ordinary discrimination would confuse the identity of the two names, and that differentiation is sufficient to relieve them of any imputation of fraud."
The name "Remington-Sholes Company" is not identical with, or an imitation of, "Remington Standard Typewriter Company," or "Remington Typewriter Company," or "E. Remington & Sons." Defendant's marks "Rem-Sho," "Remington-Sholes Co., Mgrs., Chicago." are not identical with, or an imitation of, complainant's marks "Remington;" Large Red Seal; "Remington Standard Typewriter, manufactured by Wyckoff, Seamans, & Remington, Ilion N. Y., U. S. A.;" "Remington Standard Typewriter."
The use of two distinct surnames clearly
tuting unfair competition, or calling for the imposition of restrictions lest actionable injury might result, as may confessedly be done in a proper case.
differentiated the machines of defendant | in defendant's conduct in their use constifrom those of complainant, and when defendant's cards, signs, catalogues, instructions to agents, etc., are considered, it seems to us that the record discloses, to use the language of Mr. Justice Field in the Goodyear Case, a persistent effort on defendant's part "to call the attention of the public to its own manufactured goods, and the places where they are to be had, and that it has no connection with the plaintiff." Doubtless the Remington and Sholes, in using the name
Decree of Circuit Court of Appeals reversed; decree of Circuit Court also reversed, and cause remanded to that court, with a direction to dismiss the bill.
(198 U. S. 144)
"Remington-Sholes," desired to avail them- EDWARD JASTER, Senior, Plff. in Err.,
selves of the general family reputation attached to the two names; but that does not in itself justify the assumption that their purpose was to confuse their machines with complainant's; or that the use of that name was in itself calculated to deceive. Remington and Sholes were interested in the old company, and Remington continued as general manager of the new company. Neither of them was paid for the use of his name, and neither of them had parted with the right to that use. Having the right to that use, courts will not interfere where the only confusion, if any, results from a similarity of the names, and not from the manner of the use. The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another; and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.
F. M. CURRIE.
Judgment--full faith and credit.
The refusal of the Nebraska courts to permit an action to be maintained on an Ohio judg ment denies the full faith and credit guaranteed by U. S. Const. art. 4, § 1, when based on the alleged fraud in acquiring jurisdiction of the defendant in the Ohio suit, in that the service of process therein was only made possible by giving defendant notice in Nebraska that plaintiff's deposition would be taken in Ohio for use in an action for the same cause then pending in Nebraska, in the hope that defendant would attend, and would delay his return to Nebraska after the deposition was taken long enough to permit service.
State of Nebraska to review a judgment which affirmed a judgment of the District Court of Custer County, in that state, in favor of defendant in an action on a judgment of an Ohio Court. Reversed.
As observed by Mr. Justice Strong in the Argued April 7, 10, 1905. Decided April 24, leading case of Delaware & H. Canal Co. v. Clark, 13 Wall. 311, 20 L. ed. 581, "Purchasers may be mistaken, but they are not de-N ERROR to the Supreme Court of the ceived by false representations, and equity will not enjoin against telling the truth." And by Mr. Justice Clifford, in McLean v. Fleming, 96 U. S. 245, 24 L. ed. 828: court of equity will not interfere when ordinary attention by the purchaser of an article would enable him at once to discriminate the one from the other." And by Mr. Justice Jackson in Columbia Mill Co. v. Alcorn, 150 U. S. 460, 37 L. ed. 1144, 14 Sup. Ct. Rep. 151: "Even in the case of a valid trademark the similarity of brands must be such as to mislead the ordinary observer." And see Coats v. Merrick Thread Co. 149 U. S.
562, 37 L. ed. 847, 13 Sup. Ct. Rep. 966; Liggett & M. Tobacco Co. v. Finzer, 128 U. S. 182, 32 L. ed. 395, 9 Sup. Ct. Rep. 60.
We hold that, in the absence of contract, fraud, or estoppel, any man may use his own name, in all legitimate ways, and as the whole or a part of a corporate name. And, in our view, defendant's name and trademark were not intended or likely to deceive, and there was nothing of substance shown
See same case below (Neb.) 94 N. W. 995. The facts are stated in the opinion. Messrs. O. A. Abbott and J. R. Webster for plaintiff in error.
Messrs. E. J. Clements and Halleck F. Rose for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
in error in Nebraska upon a judgment reThis is an action brought by the plaintiff covered by him against the defendant in error in Ohio. To this the defendant pleads that the plaintiff had brought a previous action in Nebraska for the same cause, and afterwards served notice upon the defendant's attorney that the plaintiff's deposition would be taken in Ohio at a certain place on September 5, 1899, for use in the cause; that defendant was advised by his attorney to be
present, and went to Ohio for that purpose only; that the deposition was taken and the defendant then went to his father's house in the same county for the night of September 5, and that on September 8, in the early morning, being the earliest time convenient for leaving his father's for Nebraska, he took the train back. The writ in the Ohio suit was received and served on September 7. It is alleged that the notice to take the deposition was simply a ruse, and was given for the purpose of enticing the defendant into Ohio, and for no other reason. There was a motion to set aside the service in the Ohio court, which was overruled (66 Ohio St. 661, 65 N. E. 1127), but the defendant alleges that at that time he had not discovered what he styles the fraud perpetrated upon him. There was a general demurrer to this answer, which was overruled, and judgment was given for the defendant. This judgment was affirmed by the supreme court of Nebraska. (94 N. W. 995), and thereupon the case was brought here on the ground that due faith and credit had not been given to the Ohio record, as required by art 4, § 1, of the Constitution of the United States. Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224; Jacobs v. Marks, 182 U. S. 583, 45 L. ed. 1241, 21 Sup. Ct. Rep. 865.
The supreme court of Nebraska affirmed the judgment on the ground that in that state the distinction between actions at law and suits in equity had been abolished, that the decision in Christmas v. Russell, 5 Wall. 290, 18 L. ed. 475, was limited to legal defenses (5 Wall. 304, 306, 18 L. ed. 479, 480), and that fraud would have been an equitable defense to the judgment in Ohio, and therefore was in Nebraska. We take up the question on this footing, without stopping to discuss the premises, which we find it unnecessary to do, and we will assume that, on general demurrer, a plea that the judgment was obtained by fraud would be a good equitable plea.
See 5 Wall. 303, 18 L. ed. 479.
It is assumed that the service of the writ in Ohio would have been good but for the alleged fraud. Smythe v. Banks, 4 Dall. 329, 1 L. ed. 854, Fed. Cas. No. 13,134; Chaffee v. Jones, 19 Pick. 260. That point must have been decided by the Ohio courts. Moreover, the facts constituting the fraud are set forth and gain no new force from the vituperative epithet. If the inducement to enter the state of Ohio furnished by the notice to take a deposition there was made fraudulent by the motive with which the notice was given, then there was fraud; otherwise there was not. On the face of the answer fraud is simply the pleader's conclusion from the specific facts. The question is whether the motive alleged can have the effect supposed.
It will be observed that there was no misrepresentation, express or implied, with regard to anything, even the motives of the plaintiff. The parties were at arm's length. The plaintiff did not say or imply that he had one motive rather than another. He simply did a lawful act by all the powers enabling him to do it, and that was all. Therefore the word "fraud" may be discarded as inappropriate. The question is whether the service of a writ, otherwise lawful, becomes unlawful because the hope for a chance to make it was the sole motive for other acts tending to create the chance, which other acts would themselves have been lawful but for that hope. We assume that motives may make a difference in liability. But the usual cases where they have been held to do so have been cases where the immediate and expected effect of the act done was to inflict damage, and where therefore, as a matter of substantive law, if not of pleading, the act was thought to need a justification (see Aikens v. Wisconsin, 195 U. S. 194, 204, 25 Sup. Ct. Rep. 3, 49 L. ed. 154), or
else where the intent was to do a further and
unlawful act to which the act done was the means. Swift v. United States, 196. U. S. 375, 396, 25 Sup. Ct. Rep. 276, 49 L. ed. 518.
It is hard to exhaust the possibilities of a general proposition. Therefore it may be dangerous to say that doing an act lawful in itself as a means of doing another act lawful in itself cannot make a wrong by the combination. It is enough to say that it does not usually have that result, and that the case at bar is not an exception to the general rule. We must take the allegations of the answer to be true, although they are manifestly absurd. The plaintiff could not have known that the defendant's lawyer would advise him to go to Ohio, and that the defendant would go to his father's house, instead of to Nebraska, when his business was over. But we assume, as far as possible, that the anticipation of these things was the sole inducement for giving the notice and taking the deposition. Still the notice was true, and the taking of the deposition needed no justification. It could be taken arbitrarily, because the plaintiff chose. On the other hand, the defendant could be served with process if he saw fit to linger in Ohio. That also the plaintiff could do arbitrarily, because he chose, if he thought he had a case. He arbitrarily could unite the two acts, and do the first because he hoped it would give him a chance to do the last. Judgment reversed.
Mr. Justice McKenna and Mr. Justice Day concur in the result.
(198 U. S. 141)
NICHOLAS J. STEIGLEDER, and Chris- | after proof was taken, the defendants moved tina Steigleder, His Wife, Appts.,
the court to dismiss the suit for want of jurisdiction, the reason assigned in the motion being only that the plaintiff was, and for a long time prior to the commencement of the suit had been, a "resident" of the state of Washington, while the defendants were "residents" of the same state.
The motion to dismiss was denied, and the case went to a decree in favor of the plaintiff upon the merits.
The defendants were granted an appeal directly to this court, the question of jurisdiction being certified.
The averment in the bill that the parties were citizens of different states was sufficient to make a prima facie case of jurisdiction, so far as it depended on citizenship. While under the judiciary act of 1789 an issue as to the fact of citizenship could only be made by plea in abatement when the pleadings properly averred citizenship, the act of March 3d, 1875 (18 Stat. at L. 472, chap. 137, U. S. Comp. Stat. 1901, p. 508), made it the duty of the circuit court, at any
Submitted April 14, 1905. Decided April time in the progress of a cause, to dismiss
the suit if it was satisfied either that it did not really and substantially involve a dispute or controversy properly within the jurisdiction of the court, or that the parties were improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under the act of Congress. Sheppard v. Graves, 14 How. 505, 14 L. ed. 521; Williams v. Nottawa, 104 U. S. 209, 211, 26 L. ed. 719, 720; Farmington v. Pillsbury, 114 U. S. 138, 143, 29 L. ed. 114, 116, 5 Sup. Ct. Rep. 807; Little v. Giles, 118 U. S. 596, 602, 30 L. ed. 269, 271, 7 Sup. Ct. Rep. 32;
Mr. Justice Harlan delivered the opinion Morris v. Gilmer, 129 U. S. 315, 326, 32 L. of the court:
The bill filed in the circuit court by the plaintiff, McQuesten, alleged her to be "a citizen of the United States and of the state of Massachusetts, and residing at Turner's Falls, in said state," while the defendants, Steigleder and wife, were alleged to be "citizens of the state of Washington, and residing at the city of Seattle, in said state."
ed. 690, 694, 9 Sup. Ct. Rep. 289. This provision of the act of 1875 was not superseded by the judiciary acts of 1887, 1888, and is still in force. Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 327, 339, 40 L. ed. 444, 449, 16 Sup. Ct. Rep. 307; Lake County v. Dudley, 173 U. S. 243, 251, 43 L. ed. 684, 688, 19 Sup. Ct. Rep. 398; Defiance Water Co. v. Defiance, 191 U. S. 184, 194, 195, 48 L. ed. 140, 144, 145, 24 Sup. Ct. Rep. 63; Minnesota v. Northern Securities Co. 194 U. S. 48, 66, 48 L. ed. 870, 879, 24 Sup. Ct. Rep. 598. The motion, based upon the proofs taken by the master, to dismiss the cause, was, therefore, an appropriate mode in which to raise the question of the jurisdiction of the circuit court.
The object of the suit was to obtain a decree adjudging defendants to be trustees for the plaintiff in respect of certain real estate in King county, state of Washington. The defendants demurred to the bill for want of equity. The demurrer was overruled, and the defendants answered, without making any issue as to the citizenship of the parties, but denying the alleged trust, and aver- It is to be observed that the grounds asring that there had been a final settlement signed for the motion to dismiss the cause, between the parties before the institution of taken alone, did not distinctly raise any the suit in respect of all the matters in dis- question concerning the absence of diverse pute. citizenship; for the motion only stated that The cause was referred to a master, and, the plaintiff and the defendants were, re
spectively, residents of the state of Wash- | 2.
Failure to except to the overruling of a motion in arrest of judgment waives the objection that the grand jurors were selected by an unauthorized official, even assuming that such objection was raised in time by such a motion.
not an averment of citizenship in that state submitted March 15, 1905. Decided May 1, for the purposes of jurisdiction. Parker v. Overman, 18 How. 137, 15 L. ed. 318; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057;
Everhart v. Huntsville Female College, 120 U. S. 223, 30 L. ed. 623, 7 Sup. Ct. Rep. 555; Timmons v. Elyton Land Co. 139 U. S. 378, 35 L. ed. 195, 11 Sup. Ct. Rep. 585; Denny v. Pironi, 141 U. S. 121, 123, 35 L. ed. 657, 658, 11 Sup. Ct. Rep. 966; Wolfe v. Hartford Life & Annuity Ins. Co. 148 U. S. 389, 37 L. ed. 493, 13 Sup. Ct. Rep. 602.
But the circuit court treated the question of jurisdiction as raised, and passed upon it. We must therefore look at the evidence bearing on that point. Defiance Water Co. v. Defiance, 191 U. S. 184, 194, 195, 48 L. ed. 140, 144, 145, 24 Sup. Ct. Rep. 63. The evidence warrants the conclusion reached by that court, namely, that the plaintiff was, for many years prior to the commencement of the action, a citizen of Massachusetts, and that her residence in the state of Washington, at and before the suit was brought, is not shown to be otherwise than temporary, without any fixed purpose to abandon citizenship in Massachusetts. So far as appears from the record, she was, when the suit was brought, a citizen of Massachusetts.
The Circuit Court did not err in taking jurisdiction of the cause, and it will be so certified.
(198 U. S. 156)
RAFAEL RODRIGUEZ and Euripides riguez, Plffs. in Err.,
IN ERROR to the District Court of the
United States for the District of Porto
Rico, to review a conviction of conspiracy.
This writ of error brings up for review a final decree of the district court of the United States for the district of Porto Rico, by which, in conformity with the verdict of a jury, the plaintiffs in error, Rafael Rodriguez and Euripides Rodriguez, were sentenced to confinement in the penitentiary, the former, for three years at hard labor; the latter, for two years, and to pay a fine of $500.
The indictment contained two counts. The first count charged that on the first day of November, 1902, in the district of Porto Rico, the defendants unlawfully conspired together to steal, embezzle, and purloin the moneys of the United States; and that, to effect the object of such conspiracy, Rafael Rodriguez, on the above date, being a postmaster of the United States, did feloniously steal, embezzle, and purloin out of certain letters which came to his possession as postmaster, and which had not then been delivered to the party to whom they were directed, divers bank notes and United States notes, the property of the United States, of the value of $560. The second count charged that the defendants (Rafael RodRodriguez being postmaster, as aforesaid) on the above date, and within the said district, feloniously stole, embezzled, and purloined bank notes and United States notes, the property of the United States, of the value of $560, out of certain letters addressed to the postmaster of the United States at San Juan, Porto Rico, and intended to be conveyed by mail, which letters had previously come into the possession of Rafael Rodriguez, as postmaster, and had not then been delivered to the party to whom they were directed.
Error to Federal district court for the district of Porto Rico-denial of right claimed under Federal statute by motion in arrest―objections to selection of grand jurors-waiver by failure to except.
1. The overruling of a motion in arrest of judgment, in which the accused asserted that the grand jurors were not selected or drawn as required by the Federal statutes, presents
a case in which "an act of Congress is brought in question and the right claimed thereunder is denied," within the meaning of the act of April 12, 1900 (31 Stat. at L. 85, chap. 191), § 35. providing for a review in the Supreme
Court of the United States of the final deci
sions of the district court of the United States for the district of Porto Rico.
The defendants jointly moved to quash the indictment upon grounds substantially involving its sufficiency. The motion was overruled, the court observing: "The indictment charges the defendants with conspiring to commit an offense, and that, in pur
suance to that, one of them did certain acts which, owing to the alleged conspiracy, were