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(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 judg. ment 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 elapsad 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, 1810. 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 bers of that family, disregarding to some exthe complaint is founded does not of itself tent the feelings and opinions of his wife, purport a consideration, the complaint should which possibly may have been somewhat unaver facts showing a consideration. This it reasonable. There were some matrimonial fails to do. The pleading does aver the bickerings, concerning which each party promise was for a valuable consideration; ought to have been, and possibly was, ashambut this is the conclusion of the pleader, and ed of his or her part therein; but they perit is the province of the court and not of haps were controlled by foolish and stubborn the pleader to determine whether the con- | pride, the husband seemingly not understandsideration was a valuable one or not. The ing and making due allowances for the weakpromise made by Gwinn was made 15 days nesses of the young wife, and not cherishing after the sale by Orem and Chapman to her as a sensible man would do. Gwinn, and there is nothing in the pleading Much discretion must be allowed to the trito show that this promise and the sale were al court in such cases. The interests of socia part of one and the same transaction. See ety in the marital union should be kept in Brush v. Raney, 34 Ind. 416; Leach V. view, and the bond of matrimony should not Rhodes, 49 Ind. 291; Nichols v. Nowling, 82 be dissolved because of marital difficulties Ind. 488; Wheeler v. Hawkins, 101 Ind. 486; which may be remedied consistently with the Plunkett v. Black, 117 Ind. 14, 19 N. E. 537. honor and happiness of both parties. In this As to Gwinn, the second paragraph of com- case the only charge was that of cruel treatplaint did not state a cause of action. As the ment, and we could scarcely have agreed with paragraph is insufficient to authorize a judg- the trial court if it had granted a divorce upment in any amount against Gwinn there is on the evidence in the record. Certainly we no ground for complaint that the amount of are not disposed to interfere with the court's recovery is too small. Appellant cannot be exercise of its discretion in favor of the presheard to complain of its own bad complaint, ervation of the family relation. and a failure to render judgment in its favor Judgment affirmed. on this paragraph gives it no right to a new trial.
(191 Mass. 344) Judgment afirmed.
GEORGE G. FOX CO. V. GLYNN et al.
(Supreme Judicial Court of Massachusetts. (38 Ind. A. 279)
Suffolk. April 3, 1906.) DARMAN V. DARMAN. (No. 5,772.)
1. GOOD WILL-PROPERTY.
The good will of a business of inanufactur(Appellate Court of Indiana, Division No. 1. ing and selling a particular kind of bread is June 8, 1906.)
property subject to protection from infringeDIVORCE-TRIAL-DISCRETION OF COURT--RE
[Ed. Note.—For cases in point, see vol. 24, Much discretion is allowed to the trial Cent. Dig. Good Will, § 1.) court in actions for divorce, and the appellate
2. TRADE-MARKS AND TRADE-NAMES-PROTECcourt is not disposed to interfere with the trial
TION. court's exercise of its discretion in favor of
Where complainant conceived the idea of the preservation of the family relation.
manufacturing a particular kind of bread, and [Ed. Note.For cases in point, see vol. 17, used, in combination with the word “Creamalt,” Cent. Dig. Divorce, § 571.]
to indicate his bread, a peculiar size, shape, and
condition of the surface of the loaf, producing Appeal from Circuit Court, Porter County; a peculiar visual appearance, all of which were Willis C. McMahan, Judge.
adopted when not in use by any one else, and Action by William H. Darman against
such combination was neither economical nor
necessary to be used by others, complainant Carrie Darman. From a judgment for de
was entitled to protect such trade-mark from fendant, plaintiff appeals. Affirmed.
infringement. Grant Crumpacker and William Daly, for
[Ed. Note.—For cases in point, see vol. 46,
Cent. Dig. Trade Marks and Trade-Narnes, 88 appellant. Johnston, Bartholomew & Barthol
6, 19.] omew, for appellee.
3. SAME-UNLAWFUL COMPETITION.
Complainant conceived the idea of manuBLACK, J. In the suit for a divorce by facturing bread from milk and malt, and for the appellant, the husband, the court found the use of his business coined the word “Creamand adjudged in favor of the wife, the appel
alt” as a trade-name, which he registered as a
trade-mark, such name, printed in blue ink on a lee. It is contended that the finding was not label of a certain size and color, being pasted supported by sufficient evidence. The par- on each loaf of bread. Each loaf was of a ties were young, and they lived together as
peculiar shape, size and having a broken surhusband and wife but a few months, part of
face caused by the injection of steam into the
ovens during the baking. Defendants thereafter the time in the family of the husband's fa- manufactured a similar bread and copied, first, ther, and the remainder of the time in the
the form of the loaf, with the words “Crown immediate neighborhood of that family.
Malt”, similarly printed thereon, and finally also
copied the surface appearance of the loaf, which There was some evidence from which the operated to deceive the public. Held, that decourt might have inferred that the appellant fendants' acts constituted unlawful competition, was, or permitted himself to seem to be, in
which complainant was entitled to restrain. fluenced in his conduct toward his wife by
[Ed. Note. For cases in point, see vol. 46,
Cent. Dig. Trade-Marks and Trade-Names, 85 deference to the opinions and wishes of mem- 81, 86.]
4. SAME-WHOLESALE DEALERS.
that there was no bread made having the Where wholesale dealers place goods bear- distinctive visual appearance adopted by the ing a fraudulent trade-mark in the hands of retailers, with which the retailers are enabled
complainant; that the peculiar shape of to deceive the public, and palm off such goods
'Creamalt bread is uneconomical from the for those of another manufacturer, the whole- standpoint of the consumer, for the reason sale dealers are liable to an injunction, though
that it does not cut in uniform slices: they do not mislead or intend to mislead the retail dealers to whom they sell.
that the complainant extensively
advertised its 'Creamalt' bread by circulars, Report from Supreme Judicial Court, Suf
and that said bread quickly became folk County.
that all 'Creamalt' bread, Bill by the George G. Fox Company made and sold by the complainant, has the against one Glynn and others to restrain de
distinctive visual appearance shown in Ex. fendants' alleged violation of a trade-mark.
bibit B, and that all such loaves were steam Case reported for the determination of the
glazed and had 'Creamalt labels affixed; full court. Decree for plaintiff.
that the 'Creamalt branch of the business is Oliver Mitchell, Chas. D. Woodberry, and
a most valuable part of its business and is Jos. T. Brennan (Roberts & Mitchell, of coun
of large value;
that the public and sel), for plaintiff. J. W. Keith and E. D. Sib
the trade called for the complainant's bread, ley, for respondents.
either by the name 'Creamalt' or by asking
for the oval loaf,' and have learned to recog. KNOWLTON, C. J. The plaintiff corpo
nize complainant's 'Creamalt' bread by its general visual appearance;
that ration is a wholesale baker, and it brings this
about the 1st of October, 1901, the defendants bill against a retail baker, and a firm of wholesale bakers, alleging unfair competition
Mackenzie & Connor placed on the market,
being practically the same market as that in trade by the defendants against the plain
of the complainant, an oval loaf of white tiff, and infringements of the plaintiff's reg.
bread identical in size, shape, proportions, istered trade-mark. The bill a vers that the plaintiff originated
and general visual appearance with the
bread of the complainant, except that no a new kind of bread, in which milk and malt
label was affixed to the loaves, and except were combined, and that, in order to identify
as to the glaze, which was a corn starch it before the public, it adopted distinctive
wash slightly different in effect from the features of shape, size, proportion, and condition of surface, resulting in a distinctive
steam glaze, consequent upon the fact that
it had no chemical action upon the surface visual appearance. For this novel bread the plaintiff coined and adopted
of the bread, and gave no crackle; that in
the word “Creamalt" as a trade-name, and registered
December, 1904, Mackenzie & Connor began it in the office of the Secretary of the com
to use a steam glaze on their bread; that in monwealth as a trade-mark. The plaintiff's January, 1905, they adopted the name 'Crown loaf bore the plaintiff's trade-mark, printed
Malt' for their bread; that beginning in May,
1905, and continuously since, they have afin blue ink upon a label of a certain size and color. The alleged unfair competition
fixed to each and every loaf of their 'Crown of the defendants consists in the manu
Malt' bread a small white label, printed in facture and sale of a loaf of bread under the
blue ink, bearing the words 'Crown Malt, name "Crown Malt,” which is practically
Made only by Sanderson Baking Company,' identical in its visual appearance with the
and a pictorial representation of a crown; plaintiff's “Creamalt" loaf. The master
that at the time of placing their found the above facts, and, among others,
oval loaf on the market said Mackenzie & made further findings as follows: "This
Connor knew of the complainant's distinctive 'Creamalt' bread was steam glazed; that is
loaf, and made their 'Crown Malt' oval loaf to say, the bread was baked in an oven, in
in imitation of complainant's 'Creamalt loaf, to which live steam was injected during the and in response to a demand caused by the process of baking, with the result that the sale of complainant's 'Creamalt loaf, and upper surface of the bread, to a slight depth, that the changes the defendants Mackenzie was chemically affected, the starch therein & Connor have made since first placing their being converted into dextrine, with the re
oval loaves on the market have tended to sult that the surface became glazed and increase the similarity of their loaf to the crackled in appearance.
On each and every
loaf of the complainant; and I find from 'Creamalt' loaf there was affixed a small such gradual approximation, and from all white label, printed in blue ink, and bearing the evidence in the case, that said defendthe name 'Creamalt,' and the words 'Made ants had a fraudulent intent to appropriate with milk and malt, George G. Fox Company, to themselves the benefit of the public deCharlestown;'
that, prior to said mand for complainant's novel and visually date, to wit, January 1, 1904, there was no distinctive loaf;
本 * that the 'Crown hread of any kind known as 'Creamalt'; that Malt' oval loaf of the defendants Mackenzie there was no bread in this market advertised & Connor has been substituted and palmed or known to the public to contain milk and off as and for the 'Creamalt bread ofthe commalt; that there was no bread commercially plainant, by the defendant Glynn and other successful containing milk and malt;
dealers to whom defendants Mackenzie &
Connor sold their 'Crown Malt bread;
bread; This good will is connected with, and de* * *
that the trade-name and trade- pendent upon, the use of the name "Creamalt” mark ‘Crown Malt is so similar to the trade- and the combination of features in the manuname and trade-mark 'Creamalt,' in con- facture of the bread which give it a distincnection with a loaf of bread, as to be likely tive visual appearance unlike that of any to create confusion, mislead the public and other bread in the market. These indicate render easy substitution by the dealers, and the place of manufacture of the loaves as that the complainant's trade-name and trade- they are sold, and give them a peculiar value mark 'Creamalt' have been infringed by in the market. The right to have the benefit Mackenzie & Connor's use of the trade-name
of the reputation of its products, which are and trade-mark 'Crown
Malt'; * * *
designated as above, is important to the that the 'Creamalt loaf of the complainant plaintiff
, and it is a right of property which is novel and distinctive; that the demand of the courts will guard as carefully as it would the public for this bread was created by the visible, tangible property. This right necescomplainant, and that the shape, proportions, sarily includes a right to the use of the and color have come to be principally, if not trade-name, trade-mark or other proper desexclusively, relied upon by ordinary purchas- ignation of its bread, thus acquired by apers as the means of identifying complainant's propriation and public recognition. Any one ‘Creamalť bread; and that the oval loaf put who attempts to deprive one of such a right, out by the defendants amounts to a represen- by palming off goods of his own manufacture tation to the consuming public that defend- for others which have acquired a valuable ants' oval loaf is complainant's 'Creamalt
reputation, is a wrongdoer whose fraudulent loaf; *
* * that the defendants Macken- attempt will subject him to the restraining zie & Connor, having knowledge of the fact and retributive orders of the court. that their bread was and had been sold by The practical difficulties which arise in the defendant Glynn and others as and for such cases come from conflicting rights, where the bread of the complainant. continued to the plaintiff's right to use his chosen means make and sell their oval loaf, and stand upon of designation of his products is not extheir right; that there is no necessity for the clusive. One way of designating articles defendants Mackenzie & Connor to make of manufacture as coming from a particular their bread of the peculiar and distinc- maker is by a trade-mark. This, to be an tive appearance of complainant's 'Creamalt effectual protection to one who has adopted bread, apart from the desire to benefit by and used it, must be something to which the the demand created by the complainant for user may have an exclusive right. It, thereits 'Creamalt' bread, and said defendants can fore, cannot be anything to the use of which, and do successfully make and sell their bread for a similar purpose, others may also have in another shape."
a right. The courts will not recognize tradeThese findings show that the plaintiff has marks which are not chosen in such a way a valuable good will in the business of manu- as not to conflict with the rights of others facturing and selling this peculiar kind of to use common names and things, like the bread. This good will is property, and is a names of persons and places, and of colors valuable asset in the plaintiff's business. For and forms with which all are familiar. But cases recognizing property in good will, see goods often come to be known as of a parCruttwell v. Lye, 17 Vesey, 335; Hitchcock ticular manufacture, and acquire a valuable v. Coker, 6 Ad. & E. 438; Knott v. Morgan, reputation, by means of a designation that 2 Keen, 213; Potter v. Com. of In. Rev., 10 could not be made the subject of a tradeEx. 147; Weddaburn v. Weddaburn, 22 Beav. mark, because others may have occasion to 84; Griffith v. Kirley (Mass.) 76 N. E. 201; make some use of the words or marks chosen. Hutchinson v. Nay, 183 Mass. 355, 67 N. E. It is important to every one who has acquired 601; Id., 187 Mass. 262, 72 N. E. 974, 68 L. a valuable good will in his business in that R. A. 186, 105 Am. St. Rep. 390; Moore v. way, to have it protected, as his other propRawson, 185 Mass. 264, 70 N. E. 64; Cross- erty is protected. It is also important to the man v. Griggs, 186 Mass. 275, 71 N. E. 560. public to be able to recognize articles of For cases recognizing the right in connec- manufacture as produced by a known and tion with a trade-mark, trade-name, or other trustworthy maker, through the appearance designation of origin, see Waltham Watch by which they have come to be known. The Co. v. U. S. Watch Co., 173 Mass. 85, 53 N. E. courts, therefore, have two reasons for rec141, 43 L. R. A.. 826, 73 Am. St. Rep. 263; ognizing and protecting trade-names, and Flagg v. Holway, 178 Mass. 83, 59 N. E. 667; other similar means of designation, whenSamuels v. Spitzer, 177 Mass. 226, 58 N. E. ever they accompany articles of manufacture. 693; Marsh v. Billings, 7 Cush. 322, 54 Am. One is to save to the manufacturer the beneDec. 723; Hildreth v. McDonald, 164 Mass. fit of the good will which belongs to his 16, 41 N. E. 50, 49 Am. St. Rep. 410; Russia products through the use of trade-name or Cement Co. v. Le Page, 147 Mass. 206, 17 N. other designation, and the other is to proE. 304, 3 Am. St. Rep. 685; Viano V. Bac- tect the public from frauds that might be cigalupo, 183 Mass. 160, 67 N. E. 641; Regis practiced by the sale of imitations. The v. Jaynes & Co., 185 Mass. 458, 463, 70 N. E. foundation of the jurisdiction of the courts 480; Cohen v. Nagle (Mass.) 76 N. E. 276. 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 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. 262; 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) 893, 899;
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. 203; 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