8.77 cuerdas situated in the northern section of the Santurce ward, in San Juan, Porto Rico, "bounded on the north by the Seboruco road, on the south by the Martin Pena Canal, on the west by the lands of the defendant, Antolin Nin Martinez, and on the east by lands of Mr. Lutz." That the defendant is the owner of a rural property with an area of 13.71 cuerdas, bounded as follows: "On the north by the Seboruco road, on the south by the Martin Pena Canal, on the west by Mr. Schirner, and on the east by lands of Rafael O. Mesorana now belonging to the plaintiff." That the plaintiff is in possession of only 5.20 cuerdas of land, and the defendant of 16.96 cuerdas, being 3.21 cuerdas more than he is entitled to.

The defendant filed a cross-complaint, in which he claimed that the plaintiff was in possession of 1.53 cuerdas of land belonging to him.

Both parties claim title from the Cortijo estate; the plaintiff through two deeds, by one of which 21.82 cuerdas of land were conveyed to him, and in which the southern boundary was given as the Martin Pena Canal. The second deed was for 9.40 cuerdas, and the southern boundary was like that in the former deed.

The defendant acquired his land from the Cortijo estate, through several mesne conveyances, and it is bounded on the south by the same canal.

By proceedings brought under the law of Porto Rico by the Cortijo estate in 1901 to determine its dominion title to the whole tract of land, its area was determined to be 40 cuerdas and so recorded in the proper registry. The people of Porto Rico were made a party to the proceedings.

The controversy between the parties arises from their different contentions as to what is the southern boundary of their lands. The District Court found that a railroad track, known as the railroad track of Rexach, built upon the northerly side of the canal about 40 years before suit was brought, for the purpose of transporting stone from a quarry, was the northerly boundary of the canal, and that, if this railroad track is taken as the southern boundary of the land, the Cortijo estate consisted of 40 cuerdas. It was contended by the defendant, Nin, that the southern boundary was the high-water line north of the railroad track, and, accepting this as

the southern boundary, its area would be about 32 cuerdas.

The three parties who had acquired the land of the Cortijo estate, by a public instrument recorded in the proper registry, stated that the area of the whole tract was 40 cuerdas, and gave the number of cuerdas owned by each, and also stated that the part owned by the defendant, as well as that owned by the predecessor in title of the plaintiff, had as its southern boundary the Martin Pena Canal. Later, in 1918, when the government desired a military camp for troops, the defendant leased to the military authorities part of his property, with its southern boundary as the railroad track of Rexach, and a plan of the camp itself was made by the military authorities, wherein Nin's property appears as reaching down as far as the Rexach railroad track. The testimony was undisputed that north of the railroad track the ground was wet and marshy, and covered largely by a mangrove growth; that the roadbed of the track stopped the salt water from rising farther, and that the water that collected upon the north side of the track was rain water. It was also in the evidence that the defendant had built upon part of the low land extending to the railroad track a factory for making concrete blocks. The custodian of the public lands of Porto Rico testified that the Martin Pena Canal extends only to the Rexach track, built upon a macadam roadbed, and that all the land north of this track is owned by private parties. [2] Whether the Cortijo estate extended to the Rexach track, or only to high-water mark, was a question of fact, and, as both the Porto Rican courts have held that the track is its southern boundary, we are bound by this finding, unless it is clearly wrong. This rule has been so many times announced by this court that it is unnecessary to cite any authorities.

A careful study of the record has convinced us that there was evidence to sustain this finding, and as the determination of whether the railroad track is the southern boundary line of the land of the Cortijo estate is decisive of the claims of the parties, and both the lower courts have found that it is, we do not find it necessary to consider the assignments of error in detail.

The judgment of the Supreme Court of Porto Rico is affirmed, with costs to the appellee in this court.

CENTRAL WAREHOUSE CO. v. CHICAGO, R. I. & P. RY. CO.

Circuit Court of Appeals, Eighth Circuit. June 8, 1927.

No. 7627.

1. Carriers 194-Carrier, mistakenly Issuing "prepaid" order bill of lading and deliv. ering shipment without collecting freight to warehouse company presenting bill of lading, held entitled to recover freight from warehouse company (Interstate Commerce Act, & 6; Elkins Act, § 1; Hepburn Act, § 2 [Comp.

St. §§ 8569 (7), 8597]).

Where carrier through mistake issued "prepaid" order bill of lading covering shipment consigned to shipper's order, and without collecting freight delivered shipment to warehouse company presenting properly indorsed bill of lading, held, under Interstate Commerce Act 1887, § 6, and Elkins Act, § 1, both as amended by Hepburn Act, § 2 (Comp. St. 88 8569 [7], 8597), intended to elminate every form of discrimination, whether intentional or unintentional, carrier unable to recover freight charges from shipper which had become insolvent was entitled to recover amount of such charges from warehouse company.

2. Carriers 188-Carrier's mistake in issuing "prepaid" bill of lading held not to estop demand for charges.

Carrier's unintentional act in mistakenly issuing “prepaid" bill of lading and delivering shipment to warehouse company without collecting freight held not to estop it from demanding payment of its lawful charges.

In Error to the District Court of the United States for the District of Minnesota.

Action by the Chicago, Rock Island & Pacific Railway Company against the Central Warehouse Company. Judgment for plaintiff (14 F. [2d] 123), and defendant brings error. Affirmed.

Briggs, Weyl & Briggs, of St. Paul, Minn., for plaintiff in error.

Thomas D. O'Brien, Alexander E. Horn, Edward S. Stringer, and Philip Stringer, all of St. Paul, Minn., for defendant in error.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge. [1] Defendant in error brought suit to recover freight charges, and demurred to the answer of plaintiff in error, which set up the fact that it had accepted the shipment in reliance upon a bill of lading indorsed "prepaid." The demurrer to the answer was sustained, and judgment entered against the Central Warehouse Company for the freight charges. The Central Warehouse Company has sought a review of this judgment by writ of error.

The facts briefly are as follows: Cullen Wholesale Grocery Company, of Omaha, Neb., in May, 1923, shipped to St. Paul, Minn., over the lines of the Union Pacific Railroad and Chicago, Rock Island & Pacific Railroad, a carload of sugar. The shipment moved on an order bill of lading to the order of the shipper, notify Central Warehouse Company at St. Paul. The bill of lading, which was issued by the Union Pacific Railroad, marked by it "prepaid," contained this provision: "The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property." The car was delivered to the plaintiff in error, Central Warehouse Company, by the Rock Island Railroad, upon surrender of the bill of lading properly indorsed. No freight charges were demanded, and the Central Warehouse Company, acting in reliance upon the "prepaid" indorsement, took the car and disposed of it for the account of the shipper and remitted the proceeds of the sale, less its commission for handling.

It now appears that freight charges were not in fact prepaid, and demand subsequently was made by the railroad company for their payment. Central Warehouse Company refused to pay these charges. The amount of the charges, if any are due, is not in dispute. It also appears that the shipper is insolvent and the railroad company has been unable to collect the charges from it.

By the Elkins Act of February 19, 1903, c. 708, § 1, as amended by the Hepburn Act of June 29, 1906, c. 3591, § 2, it is provided:

"It shall be unlawful for any person

or corporation to offer, grant or give, or to solicit, accept or receive any rebate, concession or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier, subject to said act to regulate commerce, and the acts amendatory thereof, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier as is required by said act to regulate commerce and the acts amendatory thereof, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier or shipper, who shall knowingly offer, grant, or give, or solicit, accept, or receive any such rebates, concessions or discriminations shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than $1,000, nor more than $20,000.” Section 8597, Comp. Statutes.

the plain terms of the statute will amount to nothing. The unintentional act of the carrier does not estop it from demanding payment of the lawful charge.

The action of the court in sustaining the demurrer to the answer was proper, and the judgment is affirmed.

L. P. LARSON, JR., CO. v. WILLIAM WRIGLEY, JR., CO.

WILLIAM WRIGLEY, JR., CO. v. L. P. LARSON, JR., CO.

(Circuit Court of Appeals, Seventh Circuit. April 2, 1927.)

Rehearing Denied August 30, 1927.

Nos. 3727, 3728.

1. Appeal and error 1099 (3)-Prior decrees on appeal, for accounting of unfair competition profits, without limiting territory, fix law of case.

Prior decrees of appellate courts in suit for unfair competition, that complainant is entitled to accounting of profits without limitation to competitive territory, established law of case. 2. Trade-marks and trade-names and unfair competition 98-Defendant, using unfair and oppressive means to eliminate competitor, cannot restrict accounting for profits of package dress infringement to competitive territory.

Accounting of profits for infringing competitor's package dress will not be restricted to competitive territory, where infringer employed unfair and oppressive tactics to elimintae his competitor from market.

3. Trade-marks and trade-names and unfair competition 98-Injured party, seeking profits of infringer, takes chance of their reduction or extinguishment through expenses and losses incurred in good faith.

Where injured party seeks profits of infringer, he takes chance of their reduction, or even extinguishment, through expenses and losses actually incurred, however unwisely or even improvidently, so long as they were incurred in good faith.

4. Trade-marks and trade-names and unfair competition 98-Expenses of advertising held deductible on accounting for profits of package dress infringement.

Expense for advertising, contracted and paid for in good faith, held an expense which should be deducted in fixing net profits recoverable for package dress infringement, notwithstanding that it may have been wholly or partly unearned at close of accounting period. 5. Trade-marks and trade-names and unfair competition 98-Package dress infringer, on accounting, held entitled to deduction of 45 per cent. of face value of profit-sharing coupons issued.

On accounting for profits of package dress infringement, evidence held to establish that

infringer was entitled to deduction for 45 per cent. of face value of profit-sharing coupons issued with infringing article.

6. Trade-marks and trade-names and unfair competition 98-On accounting for profits of package dress infringement, income and excess profits taxes will be deducted in amount which injured party would have paid, If receiving profits.

On accounting for profits of package dress infringement, federal income and excess profits taxes are deductible in proportion to amount that injured party would have paid, if profits had been received as they accrued.

7. Trade-marks and trade-names and unfair competition 98-Deduction may be had on accounting for profits of infringing package dress for interest on invested capital.

On accounting by infringer for profits of infringing package dress, deduction may be had for interest on invested capital.

8. Trade-marks and trade-names and unfair competition 98-On accounting for profits of package dress infringer, deduction for interest on investment held sufficient, under circumstances, to cover depreciation in value of patents.

On accounting for profits by infringer in sale of article in infringing package dress, allowance of interest on investment held, under circumstances, a sufficient deduction for depreciation in value of patents, in absence of evidence of depreciation beyond that afforded by flight of time.

9. Trade-marks and trade-names and unfair competition 98-Accounting for profits of package dress infringement held not to extend to profits of separate foreign corpora. tion, not party to aetion.

Accounting for profits of package dress infringement should not extend to foreign corporation, organized for purpose of carrying on business there, and constituting a distinct entity, organized in good faith, and not a party to action.

10. Trade-marks and trade-names and unfair competition 98-Accounting expense incured by complainant is not allowable, where package dress infringer filed account, omit. ting no important data (equity rule 63).

Where accounts filed by package dress infringer omitted no important elements of sales, manufacturing costs, and gross profits, accounting expense incurred by injured party was not allowable, on theory that account filed was not that contemplated by equity rule 63.

11. Trade-marks and trade-names and unfair competition 98-Interest at 5 per cent. from date of master's report held sufficient on accounting for profits of package dress infringement.

On accounting for profits in sale of article in infringing package dress, award of interest on amount due at 5 per cent. from date of master's report held sufficient to fully compensate injured party.