stitute agreement, the court found that, after the plaintiff had commenced the construction of the barn, the defendants asked for a change in the written agreement in respect to the size of the shed, which by that agreement was to be 12x24 feet; that the defendants understood the proposed change to increase the size of the shed from 12x24 feet to 40x17 feet, and to increase the price for the whole work from $275 to $325; that the plaintiff understood the proposed change to increase the size of the shed to 40x15 feet, and the price for the whole work to $325; that there was no meeting of the minds of the parties as to the attempted change of the agreement in writing; that shortly afterward the parties discovered their mutual misunderstanding, and negotiations for some change were renewed; that the plaintiff offered to build the shed 40x17 feet if the defendants would pay $325 and do some necessary excavating and enter into a written agreement embodying the new terms; that, while these negotiations were pending, the plaintiff had nearly completed the construction of the barn, and then renewed his offer to the defendants, informing them that if it were not accepted he should construct the shed under the existing agreement; that the defendants refused to accept the plaintiff's offer, and he finished the barn and shed in full compliance with the agreement between him and the defendants. From these facts the court drew its ultimate conclusion of fact that the written agreement between the parties had not been abandoned nor modified by any oral agreement, and that the plaintiff had fully performed the contract on his part. The error assigned, therefore, is in effect a claim that the court, in reaching its ultimate conclusion from the subordinate facts found, has clearly violated the plain rules of reason, and so committed an error in law. This claim is manifestly without foundation. The conclusion of the court from the facts found, if regarded as a conclusion of fact, was warranted; if regarded as one of law, is correct.

There is no error in the judgment of the court of common pleas. The other judges concurred.

(79 Conn. 630)

CITY OF WATERBURY v. O'LOUGHLIN et al.

(Supreme Court of Errors of Connecticut. April 10, 1907.)

1. TAXATION-ACTIONS FOR UNPAID TAXESCOMPLAINT-SUFFICIENCY.

Gen. St. 1902, § 2299, provides that any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title stands on the records. Held, in a suit for the collection of taxes, that, where the real estate listed for taxation was not set by the assessors in the lists of the persons in whose names the title stood on the records, but in a list which they made out as the taxable property of "the heirs" of a deceased owner, and the complaint failed to show that

the defendants were heirs of decedent, it was insufficient to entitle plaintiff to any relief, and, it not being alleged that the heirs of decedent were the actual owners of the real estate, it was not aided by the validating Pub. Acts 1903, p. 190, § 206, purporting to cure irregularities in assessing taxes upon property actually owned by the person against whom the tax is assessed. 2. SAME-MODE of AssessmENT-LIST BY TAX

PAYER.

Gen. St. 1902, § 2298, provides that the taxable property of every married woman shall be listed in her name, if she shall give in a list of the same to the assessors according to law, or if her husband shall within the time required by law give to the assessors written notice that he requests her taxable property to be listed in her name, and particularly specifies it. Pub. Acts 1893, p. 367, c. 219, provides that assessors shall publish a notice requiring all persons liable to taxes to bring in written lists of the taxable property belonging to them. Held that, where the agent of a married woman filed a tax list in her behalf in which she was represented as the sole owner of certain real estate, she was estopped to deny that the title was wholly in her.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 562.]

Appeal from District Court of Waterbury; Frederick M. Peasley, Judge.

Action by the city of Waterbury against Margaret O'Loughlin and others. From a judgment for defendants, plaintiff appeals. No error as to the first count. Error as to the second count, and as to that count judgment set aside and cause remanded.

William E. Thoms, for appellant. Charles G. Root and Charles W. Bauby, for appellees.

BALDWIN, C. J. This is a suit for the collection of taxes assessed in the grand lists for the years 1901 and 1902, against the defendants as owners of a lot of land in Waterbury, formerly belonging to one Hannah Coss. She died testate in 1893, and in 1895 a certificate of distribution was duly filed for record in the land records of Waterbury, showing that the title to the lot had become complete in Thomas Coss, Katie Coss, Margaret O'Loughlin, and Margaret O'Loughlin, as trustee for Frank Quinn, to whom it had been devised by Hannah Coss. Katie Coss died testate in 1896, and devised her interest to Daniel Coss. In this state of things, the assessors put the land in the grand list of 1901 in the name of the heirs of Hannah Coss, and the first count of the complaint was based upon the assessment made upon that list. It was not alleged that any of the defendants were heirs of Hannah Coss. In November, 1901, Thomas Coss conveyed his interest in this lot to Margaret O'Loughlin, and she mortgaged the land to the Hillman Brewing Company, which is one of the defendants. In 1902, before the making of the grand list of that year, the husband and agent of Margaret O'Loughlin signed and swore to an assessment list which he filed with the assessors, in which it was stated that this lot was a portion of the taxable property belonging to Margaret O'Loughlin, whereupon they set the lot in her list, and made out the grand list

accordingly. The assessment based upon it was the subject of the second count.

The taxes for neither year were paid, and the collector filed proper certificates of lien for record. Gen. St. 1902, §§ 2298, 2299, provide that "any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town in which such real estate is situated"; and that "the taxable property of every married woman shall be listed in her name, if she shall give in a list of the same to the assessors according to law, or if her husband shall, within the time required by law for giving in lists of taxable property, give to either of the assessors written notice that he requests her taxable property to be listed in her name, and particularly specifies it." At the time when the tax lists for 1901 were made up, the land records showed that the title to the lot in question had passed from the estate of one Hannah Coss, deceased, to Thomas Coss, Katie Coss, Margaret O'Loughlin, and Margaret O'Loughlin as trustee. Instead of listing the land in their names, or in the names of any persons, the assessors set it in a list which they made out as the taxable property of the heirs of Hannah Coss. If we are to assume that lands can ever properly be listed as the property of those designated simply as heirs of another, there is not only nothing to show that the defendants were heirs of Hannah Coss, but it is expressly alleged that she died testate. A duty to pay taxes is always the creation of statute, and arises only where the requirements of the statute have been strictly fulfilled. Meyer v. Trubee, 59 Conn. 422, 426, 22 Atl. 424; New Britain v. Mariners' Savings Bank, 67 Conn. 528, 532, 35 Atl. 505. No case for relief of any sort, therefore, is made out under the first count. It gains no help from the general validating act of 1903 (Pub. Acts 1903, p. 190, c. 206), which purports to cure errors and irregularities in assessing taxes upon "property actually owned by the person or corporation against which such tax is assessed," since it is not alleged that the heirs of Hannah Coss were the actual owners of the lot in question.

Under the second count, relief is sought nly against Margaret O'Loughlin. When the lot was set in her list, the land records showed that she owned an undivided half interest in it, individually, and also an undivided fourth interest as trustee for another of the defendants, Frank Quinn; the other fourth interest being the property of Daniel Coss, who is not a defendant. The demurrer admits, however, that her agent filed a tax list in her behalf, in which she was represented as the sole owner. Under the allegations of the complaint and the provisions of our statutes (Gen. St. 1902, § 2298; Pub. Acts 1893, p. 367, c. 219), he must be regarded as her duly authorized agent. Martin v. N. Y. & N. E. R. R. Co., 62 Conn. 331, 344, 25 Atl.

239. She is therefore estopped from denying that the title was wholly in her. Union School District v. Bishop, 76 Conn. 695, 697, 58 Atl. 13, 66 L. R. A. 989. It follows that the second count was sufficient to support a recovery against Margaret O'Loughlin, under Gen. St. § 2407, for the full amount of the tax due on the list of 1902, and, in default of its payment, for the foreclosure of the tax lien as to her half interest in the lot.

There is error in the judgment on the second count, and, as respects the disposition of that count, the judgment is set aside, and the cause remanded for further proceedings according to law. The costs taxed in this court for the appellant will not include the $20 fee "for all proceedings." The other Judges concurred.

(79 Conn. 626)

HOPKINS v. MERRILL (Supreme Court of Errors of Connecticut. April 10, 1907.) EVIDENCE PAROL EVIDENCE TO VARY INDORSEMENT.

An unqualified indorser of a note cannot vary her contract of indorsement by parol evidence that the indorsee at the time of the indorsement agreed to keep her fully advised as to the conduct of the maker of the note respecting its payment, and failed to do so.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, $§§ 1807-1812; vol. 7, Bills and Notes, §§ 1791-1799.]

Appeal from City Court of Hartford; Herbert S. Bullard, Judge.

Action by Georgiana E. Hopkins, the indorsee, against Hattie H. Merrill, the indorser and payee, of a negotiable promissory note. The plaintiff having died pending the action, her administrator, A. C. Hopkins, entered to prosecute. The plaintiff's demurrer to a second defense was overruled, and the case afterwards tried to the jury upon an answer denying certain allegations of the complaint. Verdict and judgment for plaintiff, and appeal by defendant. Affirmed.

Joseph P. Tuttle, for appellant. Albion B. Wilson, for appellee.

HALL, J. This is an action against the defendant as indorser of the promissory note of one Anna M. Hotchkiss for $1,500 dated January 8, 1904, payable to the defendant's order in monthly installments of $25 on the 10th of each month, to recover three of said installments, due, respectively, May 10, June 10, and July 10, 1905; due notice of the nonpayment of which is alleged to have been given to the defendant. The note was indorsed by the defendant to the plaintiff on the 22d of July, 1904. The second defense alleges, in substance, that when the note was indorsed to the plaintiff six of the installments had been paid; that it was so indorsed in payment of the difference between the equities in certain properties exchanged between plaintiff and defendant, and was secured by a second mortgage upon land of the maker

of the note, which was of sufficient value above the first incumbrance to pay the note in suit; that the plaintiff at the time of the indorsement agreed with the defendant to keep her fully advised as to the conduct of the maker of the note, respecting the payment of the installments, "and with respect to any action of hers touching the value of said security"; that the plaintiff failed to do so, and failed to give the defendant notice of the failure of the maker to pay several installments prior to May 9, 1905, and to give notice to the defendant of an action for the foreclosure of said first mortgage by the owner thereof against both the plaintiff and the maker of said note, until after said second mortgage had become extinguished by foreclosure; and that had the defendant been notified of said action she "would have been able to redeem said property and save said security." The plaintiff's demurrer to this defense stating, in substance, as grounds of demurrer, that the plaintiff owed the defendant no duty or obligation to notify her of said foreclosure suit, nor to defend said suit, was sustained by the trial court.

We shall treat the demurrer, as it has been by counsel and probably by the trial court, as raising among other questions that of whether parol evidence was admissible to prove such agreement as varying the terms of the contract of indorsement. The trial court correctly overruled the demurrer. Under section 4233, Gen. St. 1902, the defendant is liable as an indorser. His contract of unqualified indorsement is described in section 4236. One of the elements of such contract is a promise that if the note shall not be paid upon due presentment, and the necessary proceedings upon its dishonor are duly taken, the indorser will pay the amount of it to the holder. That parol evidence is not admissible to vary this contract is too well settled to require discussion. Dale v. Gear, 38 Conn. 15, 9 Am. Rep. 353. The answer does not expressly state that to the defendant's contract of indorsement, as defined by statute, there was added by the parol agreement the further condition that she should be fully advised by the plaintiff as to the conduct of the maker of the note regarding payment of the installments, and as affecting the value of the mortgage security. If such is the effect to be given to the agreement pleaded, it varied the contract of an unqualified indorsement and parol evidence was not admissible to prove it. If the agreement pleaded did not vary the contract of indorsement by imposing a new condition upon the liability of the defendant, then it was not a part of the contract of indorsement, and the defendant's promise to pay upon due notice of dishonor remained unchanged and enforceable. If such a valid agreement as is alleged in the answer was entered into between the indorser and indorsee, it at the most created a collateral obligation upon the part of the plaintiff to

keep the defendant advised as alleged, the breach of which might enable the defendant after having been compelled to pay the note to maintain an action for damages, or to recoup by a counterclaim when sued upon her indorsement. New Haven Mfg. Co. v. New Haven Pulp & Board Co., 76 Conn. 126– 130, 55 Atl. 604. But no counterclaim is pleaded in the present case; and the agreement is pleaded only as a defense, for which purpose it is wholly insufficient.

The facts pleaded by the second defense do not show any such relation, antecedent agreement, or state of facts between the plaintiff and defendant as renders an attempt to enforce the contract of indorsement inequitable or fraudulent under the decision of this court in Dale v. Gear, supra. They show either an attempt to change by parol evidence an unrestricted into a restricted indorsement, or to prove as a defense a collateral agreement which could only be the basis of a separate action or a counterclaim.

The trial court correctly ruled that the failure of the plaintiff to notify the defendant of the nonpayment of other installments did not affect his right to recover the three which are the subjects of this suit. Fitchburg Ins. Co. v. Davis, 121 Mass. 121. There is no error. The other Judges concurred.

The proprietor of a hotel managed as "The Hotel Dominion" is entitled to restrain another from operating a new hotel under the name of "The New Dominion," as against the objection that the owner of the new hotel as tenant of the old improved its reputation by reason of his labors.

2. SAME INJURIES FROM USE OF TRADENAME.

The proprietor of a hotel managed as "The Hotel Dominion" is entitled to an injunction restraining the use by another proprietor of a hotel of the name "The New Dominion" on the ground that the name of the new hotel will aid in procuring guests theretofore patronizing the old one.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 64.]

Suit by Michael O'Grady against Clara McDonald. Heard at the return of an order to show cause for a preliminary injunction on bill, answer, and affidavits. Preliminary injunction issued.

Complainant is the owner of a hotel on Arkansas avenue, in Atlantic City, known as "The Hotel Dominion," and seeks to restrain defendant from using the name "The New Dominion" for a hotel which defendant has recently erected on that avenue within a few hundred feet from the hotel owned by complainant. The theory of the bill is that de

fendant is violating rights which complainant has acquired by prior appropriation of the trade-name stated.

Heard, at the return of an order to show cause for a preliminary injunction, on bill and affidavits, and answer and affidavits.

Thompson & Cole, for complainant. Bourgeois & Sooy, for defendant.

LEAMING, V. C. (after stating the facts). There can be no doubt of the power of a court of equity to restrain the improper use of a trade-name. The principles involved are in many respects analogous to those arising in the protection of trade-marks. Busch v. Gross (N. J. Ch.) 64 Atl. 754; International Silver Co. v. Wm. H. Rogers Corporation, 67 N. J. Eq. 646, 60 Atl. 187, 110 Am. St. Rep. 506; Eureka Fire Hose Co. v. Eureka Mfg. Co., 69 N. J. Eq. 159, 60 Atl. 561. Complainant's hotel has been conducted under the name "The Hotel Dominion" for upwards of 12 years. That name has necessarily become so associated with the hotel that complainant is clearly entitled to protection against the use of the same or a similar name in such manner as to be likely to deceive or mislead the public. Defendant claims, however, that she was a tenant of complainant's hotel from March 1, 1896, to March 1, 1897, and during that time gave the hotel of complainant a high standing under its old name, which name, she claims, was of little value prior to that time. I think this fact wholly immaterial. Defendant leased the hotel for one year furnished and ready for occupancy. Her lease described the property as "The Hotel Dominion." If during the year of her tenancy the reputation of the hotel was improved by reason of her labors, that fact cannot properly be held to entitle her to the use of the name for an opposition hotel at the end of her term. Had the name been one of her own adoption, as in Wilcoxen v. McCray, 38 N. J. Eq. 466, and not one which she only became entitled to use because she was a tenant of the property of complainant, an altogether different condition might exist.

The more difficult question is whether the name "The New Dominion," as used by defendant, is likely to operate to deceive or mislead the public. A question of this nature necessarily depends largely upon the special circumstances of the individual case. In Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57, the proprietors of a store known as "Mechanics' Store" were awarded an injunction against the use, by an opposition concern, of the name "Mechanical Store." In Gamble v. Stephenson, 10 Mo. App. 581, the proprietor of "What Cheer" restaurant was awarded relief against the name "New and Original What Cheer Restaurant." In Colton v. Thomas, 2 Brewst. (Pa.) 308, the name "Colton Dental Association" was protected against the use of the name "Colton Dental

Rooms." In Cady v. Schultz, 19 R. I. 193, 32 Atl. 915, 29 L. R. A. 524, 61 Am. St. Rep. 763, the name "United States Dental Association" was protected against the use of the name "U. S. Dental Association." In each of these cases various circumstances existed of more or less force to control the decisions rendered; but the essential inquiry in all cases is: Is the new name, as used, calculated to deceive or mislead? In the present case no reason is suggested by defendant for her desire to use the name "Dominion" in her new enterprise; but the inference is present that she finds in the name adopted some aid to the procurement of guests who have heretofore patronized the old hotel. I am unable to believe that this will not be the effect of the use of the name if that use is permitted.

I will advise that a preliminary injunction issue pursuant to the prayer of the bill.

A husband and wife owned adjoining lots in severalty. As a part of a sale of the husband's lot he and his wife executed an agree ment, reciting that one of the considerations of the conveyance was that no building should at any time be erected on the wife's lot nearer than five feet of the dividing line. The contract was originally intended to be signed by the husband alone, but the wife's name was subsequently interlined in ink, as a party of the first part, though the other changes necessary to make the agreement conform to such change were not made, so that the covenants as written appeared only to bind the husband. Held, that the contract, construed in accordance with the intent of the parties, was sufficient to bind the wife.

2. HUSBAND AND WIFE-CONTRACTS OF WIFE -CONSIDERATION.

Where a husband and wife owned adjoining lots in severalty, and, as part of a sale of the husband's lot, the wife joined in a contract restricting the use of her lot by prohibiting an erection thereon less than five feet from the division line, her dower interest in her husband's lot constituted a sufficient consideration for her agreement, and was sufficient to bind her property by such restriction.

3. VENDOR AND PURCHASER NOTICE-RECORDS.

VENDEE WITH

Where an agreement imposed a building restriction on defendant's vendor, such restric tion might be enforced by injunction against defendant who took with notice, though the agreement was not recorded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 498; vol. 14, Covenants, § 91.]

4. SAME-NOTICE-EVIDENCE.

At the time defendant purchased his lot, which adjoined plaintiff's property, the vendor's husband informed him that there was a restriction on the lot covering about five feet. Defendant then asked if the restriction prevented him from building a bay window, and was informed that it related only to the body or wall of defendant's house. Defendant took no steps to ascertain the nature of the restriction from complainant, which in fact prohibited the construction of any part of a building nearer than

five feet of complainant's west line. Held, that defendant was charged with notice of the restriction as it in fact existed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 477, 484–493.] 5. SAME-NEW DEED.

Where defendant had notice of a covenant binding his lot, prohibiting the erection of a building within five feet of complainant's line, a new deed procured by defendant from his vendor for the purpose of curing an alleged mistake as to such restriction in the original deed, reciting that the restriction only restrained the erection of the main wall of defendant's building nearer than five feet from the line, was ineffective to alter the original restriction.

Bill by Martha F. Wahl against Franklin P. Stoy for an injunction to restrain defendant from violating a restriction in a deed. Decree for complainant.

Thompson & Cole, for complainant. Godfrey & Godfrey, for defendant.

BERGEN, V. C. Alfred C. McClellan was the owner of a lot of land 50 feet in width fronting on Pacific avenue in the city of Atlantic City, and his wife, Mary, of a lot 40 feet in width, adjoining on the west her husband's lot. By their deed dated February 2, 1904, in consideration of the sum of $35,000, they conveyed to the complainant the husband's lot. On the same day an agreement was drawn, signed and acknowledged in due form by McClellan and his wife as parties of the first part, by the terms of which, after, among other matters, reciting the conveyance to the complainant, and that one of the considerations of that purchase was that no building should at any time be erected nearer than five feet of the westerly line of the lot that day conveyed to complainant, the party of the first part agreed that no building to be thereafter erected on the adjoining lot should be erected nearer than five feet from the westerly line of complainant's lot. On September 1, 1904, Mary A. McClellan and her husband conveyed her lot to the defendant. This deed contained the following stipulation: "Subject nevertheless to the condition and restriction that no building, or any part of a building, shall be erected within five feet of the easterly line of the above described premises." And on the 13th day of June, 1905, a deed was executed by the grantors last named to the defendant, which, after reciting that the above restric tion was inserted in the former deed by inadvertence and mistake, and declaring that it was not the purpose and intention to restrict the five feet mentioned as to the eaves, bay window or similar projections of any building to be erected on said land, granted, conveyed, released, and confirmed to the defendant the premises described in the former deed subject to the restriction "that the main wall of no building shall be erected within five feet of the easterly line of the abovedescribed premises." The acfendant has so placed his building that the eaves and a bay window occupy a part of the five feet which 66 A.-12

the complainant insists her agreement forbids, and this bill is filed to compel the defendant to remove these incumbrances.

The first point raised by the defendant is that the covenants in the contract restricting the use of the wife's land all run in the name of the husband, and cannot bind the wife, the owner of the property sought to be restricted, even if it was an effective agreement in other respects. As the agreement is the foundation of complainant's claim, this question must be first met and disposed of. The original contract has been put in evidence, and an examination of it shows that the draftsman, at the time of its preparation, must have been under the impression that the title to the land sought to be restricted by the agreement was in the husband, and that he alone was to execute it, for the paper is typewritten, and the name of the wife, as a party of the first part, interlined in ink, while other changes necessary to make the agreement conform to the change in the first clause were not made, and the executed contract stands precisely as it was first drafted, with the exception that the name of the wife is inserted as one of the parties of the first part. There was but one purpose sought to be accomplished by this agreement, and that was a covenant that the owner of the lot re ferred to in it would not erect on it any building nearer than five feet of the westerly line of the lot sold to the complainant, and it is a rule of construction that if the court, with knowledge of the situation in which the contracting parties stood at the time of executing the agreement, and with a full understanding of the force and import of the words, can ascertain the meaning and intention of the parties from the language of the instrument, it is its duty to determine the right of the parties in accordance therewith. Culver v. Culver, 39 N. J. Law, 574.

The contract, in which the wife is one of the parties of the first part, recites that Alfred C. McClellan and Mary A., his wife, had conveyed to the complainant a lot of land 50 feet front, located at the northwesterly corner of Pacific and States avenues, and that one of the considerations which induced the complainant to purchase that lot was that no building should at any time thereafter be erected nearer than five feet of the westerly line of the lot so conveyed to her, and also that the party of the first part was the owner of the land immediately adjoining such westerly line, for a distance of 40 feet along Pacific avenue. Following these recitals, "the party of the first part, for himself, his heirs and assigns, in consideration of the premises, and of the sum of $1, to him duly paid by the party of the second part, and also for the benefit of the land retained by him, as well as that conveyed as aforesaid, hereby covenants and agrees to and with the party of the second part, her heirs and assigns, that no building to be hereafter erected on the lot adjoining on the west the lot hereinabove and