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folio.” The defendants replied to this letter, requesting that their order for one copy of the reports be entered.

Pursuant to this agreement, the plaintiff furnished to the defendants mimeographed transcripts of the proceedings before the commission. The reports consisted of 4,410 pages, containing 8,820 folios, the price for which, at the rate specified, was $882.

Sometime after the reports had been delivered to the defendants they offered to return them to the plaintiff, but the plaintiff declined to receive them and brought this action to recover the sum of $882.

The plaintiff company made proof that the word "folio,” when used in relation to official reports of proceedings or hearings before Federal or state commissions, investigating committees, courts and other public bodies, invariably means 100 words, and is generally so understood throughout the United States. It may

be stated that the word “folio" when used in connection with legal papers or proceedings, is generally understood to mean 100 words. The term is frequently so defined by statute. Section 21 of the General Construction Law of New York, for instance, provides “the term folio shall mean 100 words, counting each figure as a word.” The defendants, however, did not so understand. They labored under the misapprehension that the word “folio” meant “a large folded sheet or four pages," containing printed matter. And it does mean this when used in a proper connection.

Upon the trial of the case, the court instructed the jury that, if they found from the evidence that the word "folio" meant one thing to the plaintiff and another thing to the defendants, the minds of the parties never met as to the price of the reports. And, if they so found, the court instructed the jury to give its verdict for the plaintiff for the reasonable value of the reports. The jury rendered its verdict in favor of the plaintiff for $392. The plaintiff, not being satisfied with this, appealed.

Upon appeal, it was held that the trial court was in error in giving these instructions to the jury, and that the plaintiff should have recovered the full amount sued for. The Appellate Court said:

The instruction is manifestly erroneous. Where, as here, the action is at law upon an express contract in writing, and there is no allegation or proof of fraud, the contract must be construed and enforced according to the true meaning of the language used and may not be adjudged ineffectual because one of the parties to the contract meant or understood the language in a sense different from its true meaning.

The instruction was doubly erroneous in that it not only authorized the jury to relieve the defendants from the obligations of their contract upon premises that are unsound but also commissioned the jury to find for the plaintiff upon quantum meruit (reasonable value), though plaintiff pleads an express contract for a specified price.

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Mortgage in Favor of Corporation, Acknowledged Before

Officer of Corporation as Notary, Held Valid THERE is a general rule to the effect that a mortgage or other

instrument which is acknowledged before a notary, who is

beneficially or financially interested in the instrument, is void. At least, it is so held in cases where an acknowledgment is essential to the validity of the instrument involved. And even in cases where an acknowledgment is not essential, it is held that an instrument acknowledged before an interested party as notary is void as against the subsequent purchasers and creditors without actual notice of the existence of the instrument.

The reason for this rule is that public policy forbids the performance of so important an act by a person beneficially interested in the instrument acknowledged.

Under this rule, it is held in a number of cases that an instrument in favor of a corporation acknowledged before a notary who is a stockholder in the corporation, is invalid. The theory is that a stockholder is a part owner of the corporation. A decision on this point was reported in the May, 1923, issue of the Business Law Journal at page 288.

On the other hand, it is generally held that the acknowledgment of an instrument running to a corporation may be taken before a notary who is an officer of the corporation. There are, however, some decisions to the contrary.

In a recent decision of the United States District Court, Gustlin v. Whitham, 292 Fed. Rep. 782, a trustee in bankruptcy asked the court to declare invalid two mortgages executed by the bankrupt in favor of two banks to which the bankrupt was indebted, on the ground that the notaries who took the acknowledgments on the mortgages were officers of the barik.

The court held that this did not invalidate the mortgages, saying: “The acknowledgment of an instrument running to a corporation before an officer of such corporation does not invalidate the acknowledgment unless such officer is a stockholder or otherwise personally interested in the transaction.”

The safest rule to follow in dealing with instruments executed in favor of a corporation is to have them acknowledged before a notary who is neither an officer nor a stockholder of the corporation.

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Broadcasting of Copyrighted Song Held an Iofringement

of Copyright
HE question whether the owner of a copyrighted song may,
by injunction, restrain a department store from broadcasting

the song is presented in a case recently decided by the United States District Court (New Jersey), M. Witmark & Sons v. L. Bamberger & Co., 291 Fed. Rep. 776. The court holds that such use of a copyrighted song may be enjoined.

The defendant, L. Bamberger & Co., conducts a department store in Newark, N. J. It sells radio equipment and conducts a radio broadcasting station. The plaintiff, M. Witmark & Sons, owns the musical composition entitled “Mother Machree," and under the Copyright Act of 1909 (Comp. St. $ 9715 et seq.) possesses the exclusive right to render that composition publicly for profit.

The plaintiff sought an injunction restraining the defendant from broadcasting “Mother Machree” from its broadcasting station. The plaintiff alleged that the broadcasting of the song was a performance of it by the defendant publicly for profit, within the meaning of the Copyright Act. The defendant, denying that the broadcasting of the song was for profit, contended that since everything it broadcasted was broadcasted without charge or cost to radio listeners there was no performance publicly for profit.

It was held that the broadcasting was done publicly for profit, and a decree was entered in favor of the plaintiff. The court found that the broadcasting, because of the fact that the cost thereof was charged against the general expenses of the business, was made a part of the business system of the department store, which was heing conducted for profit.

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The court's decision was, to some extent, influenced by the fact that the defendant's name and business slogan were broadcasted at the beginning and end of every program. The court regarded this fact as an indication that the defendant, in maintaining its broadcasting station, had in mind the development or enlargement of its business.

The defendant argued that the plaintiff should not complain of the broadcasting of its song because of the great advertising which it thereby received. The court held that this was no defense.

While the broadcasting of a musical composition might greatly increase its sale, the fact remains that the owner of a copyright has the privilege of selecting his own methods of advertising.

The following paragraphs are quoted from the opinion of the court:

We have already stated that the Bamberger Company makes no direct charge to those who avail themselves of the opportunity to listen to its daily broadcasting programs. The question then is: Is the broadcasting done for an indirect profit? In determining this we think it is proper to look to the reason for broadcasting at all. Why was it done? What was it done for? What was the object or to use the term of Justice Holmes : What was the "purpose"? We know the purpose of the restaurant proprietor, and we know the purpose of the proprietor of the moving picture theatre. What was the purpose of the defendant in expending thousands of dollars in estab1 hing and operatin - this broadcasting station?

Adopting the language of Justice Holmes (in Herbert v. Shanley Co., 37 Sup. Ct. Rep. 232), the defendant is not an “eleemosynary institution." A department store is conducted for profit, which leads us to the very significant fact that the cost of the broadcasting was charged against the general expenses of the business. It was made a part of the business system.

Next we have the fact, already referred to, that the defendant sells radio receiving instruments and accessories. Whether a profit has resulted from such sales is not material in determining the object. It is within the realms of probability that many departments of a large store at times show losses rather than profits. Paraphrasing the comments of Justice Holmes, "Whether it pays or not the purpose is profit, and that is enough.” While the defendant does not broadcast the sale prices of its wares or refer specifically thereto, it does broadcast a siogan which appears in all of the defendant's printed advertisements. That slogan, which is, “L. Bamberger & Co., One of America's Great Stores, Newark, N. J.,” is broadcasted at the beginning of every periodical program and also at the conclusion thereof. A person listening to the program of WOR will hear at the beginning the statement that L. Bamberger & Co. regard themselves as the proprietors of one of America's great stores.

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If the development or enlargement of the business of the department store was completely out of the mind of the promoters of this broadcasting enterprise, is it reasonable to believe that the slogan "L. Bamberger & Co., One of America's Great Stores, Newark, N. J.," would be announced to all listeners one, two, three, four, five or six times a day? If the defendant desired to broadcast for purely eleemosynary reasons, as is urged, is it not likely that it would have adopted some anonymous name or initial? Undoubtedly the proprietors in their individual capacities have done and do many things of a public spirited and charitable nature on account of which they are entitled to the highest commendation. But it does not appear and the court cannot believe, that those charitable acts are all labeled or stamped “L. Bamberger & Co., One of America's Great Stores, Newark, N. J."

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Conditional Buyer of Car Entitled to Full Value Under

Theft Policy Though Car Not Paid For
NTONIO VIGLIOTTI purchased an automobile under a

contract of conditional sale. The contract provided, as

such contracts generally do, that title to the car should remain in the seller until the purchase price was fully paid.

At the time of receiving the car Vigliotti paid part of the purchase price and gave a series of installment notes, one falling due every 30 days, for the unpaid balance. The notes provided that all should fall due upon default in the payment of any one and contained provisions for confessing judgment in the event of such default.

The purchaser then had the car insured against theft in the Home Insurance Co., informing that company as to the circumstances under which he had purchased the car. The car was stolen. The insurance company refused to pay the loss and Vigliotti brought suit. The company contended that it was not liable because, at the time of the theft, the car had not been paid for.

The court held that this was immaterial. Although Vigliotti had not paid all of the notes he would, nevertheless, be liable on them as they fell due. “It cannot be questioned,” said the court, “that, as between plaintiff and the seller, the theft of the car furnished no defense to the liability on the outstanding notes.”

In deciding that the plaintiff was entitled to recover the entire amount of his loss, the court said:

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