his product, namely, the words "W. H. Rogers, of Plainfield, N. J.," tends to produce confusion in the trade to the injury of complainant's business, and to the wrong of the public, and the complainant asks that he be enjoined from the further prosecution of his business, unless he stamps his product in such a way as to make it plain that it is not manufactured by the original Wm. Rogers Company, to whose business the complainant was the successor.

The learned Vice Chancellor thought the injunction should not go, holding that the defendant was under no obligation to do anything more than use his own name fairly; that the evidence showed no fraud; and that the mere fact that a competitor is, or may be, injured, is not material. In that view we cannot concur. Assuming that every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, he may not, in such use of his name, resort to any artifice, or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name. Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N. E. 304, 9 Am. St. Rep. 685; Pillsbury v. Pillsbury, 24 U. S. App. 395, 64 Fed. 841, 12 C. C. A. 432; Croft v. Day, 7 Beav. 84; Holloway v. Holloway, 13 Beav. 209, Wotherspoon v. Currie, L. R. 5 H. L. 508; Howard v. Henriques, 3 Sandf. 725; Meneely v. Meneely, 62 N. Y. 427, 20 Am. Rep. 489; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997; Brown Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247; Coats v. Merrick Thread Co., 149 U.

562, 13 Sup. Ct. 966, 37 L. Ed. 847. The leading case is Singer Mfg. Co. v. June Mfg. Co., supra, in which Mr. Justice White, after affirming the doctrine above set forth, and citing the cases which support it, declared: "Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications." That proposition finds support in the following cases: Howe Scale Company v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 25 Sup. Ct. 609, 49 L. Ed. 972; Walter Baker & Co. v. Baker (C. C.) 87 Fed. 209; Centaur Co. v. Link, 62 N. J. Eq. 147, 49 Atl. 828; Chickering v. Chickering, 120 Fed. 69, 56 C. C. A. 475.

When this suit was originally before the court, the Vice Chancellor found that the

name "Rogers" had acquired a secondary significance in connection with the manufacture of silverware. In his opinion, reported in 66 N. J. Eq. 120, 57 Atl. 1037, he uses this language: "The complainant is the successor of several companies which have been engaged for many years in the manufacture of silver-plated ware, and which all derive their title from three brothers of the name of Rogers, who were among the first, if not the first, to apply the art of electro-plating to its manufacture. They gained a reputation for their products, and the name 'Rogers' has acquired a secondary significance in connection therewith." That finding of fact is, in our judgment, fully warranted by the evidence. While a personal name may not constitute a technical trade-mark, yet, where an article has come to be known by that personal name, one may not use that name, even though it be his own, to palm off his goods as the goods of another who has first adopted it, and by which appellation the goods have come to be known, when the use of his own name for such purpose works a fraud. If he uses his own name, it must be so used as not to deprive others of their rights, or to deceive the public, and the name must be accompanied with such indications that the thing manufactured is the work of the one making it as would unmistakably inform the public of the fact. Williams V. Mitchell, 106 Fed. 169, 45 C. C. A. 265; Meyer v. Medicine Co., 58 Fed. 884, 7 C. C. A. 558; Baker v. Sanders, 80 Fed. 889, 26 C. C. A. 220; Allegretti v. Allegretti, 52 N. E. 487, 177 Ill. 129; Pillsbury v. Mills Co., 64 Fed. 841, 12 C. C. A. 432; Allegretti v. Keller (C. C.) 85 Fed. 643; Raymond v. Powder Co., 85 Fed. 231, 29 C. C. A. 245; Mills Co. v. Eagle, 86 Fed. 608, 30 C. C. A. 386, 41 L. R. A. 162.

The normal presumption that the use of one's own name is an honest one may be rebutted by showing a prior fraudulent use of it touching the matter in issue. Such prior fraudulent use of the defendant's name in connection with the manufacture and sale of silverware is established in this case by the testimony herein and the record of the original suit. The burden is therefore on the defendant to show that the use of his name is not in effect a continuation of such prior fraud. The defendant has not only failed to sustain this burden, but, on the contrary, the testimony in the present case abundantly shows that the defendant has acquired by purchase and is enjoying the results of a business which was built up in fraud of the complainant. It had been established by the corporation which bore his name, and a certain part of its success, at least, was due to the fact that it was getting the benefit of the reputation achieved by the original Rogers people, to the good will of whose business the complainant had succeeded. That benefit he must continue to receive while carrying on this same busi

ness in his own name, unless the public are enabled to certainly know that the goods which he puts upon the market are not the goods of the complainant or its predecessors.

The defendant contends that he distinguished his goods by stamping on them the words, "W. H. Rogers, of Plainfield, N. J." The alleged distinguishing words are "of Plainfield, N. J."; but that is no distinguishing mark. As the history of the "Rogers" name in connection with silver-plated ware shows, there were several places where the art was carried on, and the "Rogers" mark was lawfully used. Locality has no sufficiently distinguishing force, because locality is not associated in any way with the mark itself. It is the word "Rogers" that is all controlling, and it is that which should be differentiated in order to effectually distinguish the goods. In Baker v. Sanders, 80 Fed. 889, 895, 26 C. C. A. 220, the defendand (in lieu of more extended changes), was required to affix the statement that "W. H. Baker is distinct from and has no connection with the old chocolate manufactory of Walter Baker & Co." In the case of Allegretti v. Allegretti, 52 N. E. 487, 177 Ill. 129, in the Supreme Court of Illinois, the court enjoined the defendants against the use of the name "Allegretti," except in a manner indicating that the defendants' goods are "manufactured and sold by B. F. Rubel, I. A. Rubel, and Giacomo Allegretti, and not by Ignazio Allegretti or the Allegretti Chocolate-Cream Company."

In cases like the present one, it is elementary that the person to be considered is not the jobber or wholesaler, but the ordinary purchaser at retail. This being so, the marks "not connected with any other Rogers," which are put upon the boxes, packages, and wrappers, and which do not reach the purchaser at the retail shops, afford no means to the retail purchaser of distinguishing the defendant's product from that of the complainant. Under the circumstances of the present case, it was the duty of the defendant to so distinguish the silverware known to the world as the "Rogers" ware. The words "not connected with any other Rogers," even if they reached the retail purchaser, would not suffice for that purpose. Those words merely tend to add to the confusion. They might well be, and usually would be, employed by an original manufacturer seeking to warn the trade when he finds on the market other goods which may be passed off as his. They would be the appropriate announcement of an original maker that he has no connection with other wares of similar appearance or wares put out under a similar name. Those words also afford an unscrupulous retail dealer opportunity to pass off the product as the original "Rogers" goods. In employing such words, so misleading and ambiguous, the defendant is clearly guilty of bad faith.

The defendant having failed in the performance of his duty to so distinguish his silverware that it could not be mistaken for that of the complainant, we think the complainant is entitled to have an injunction restraining the defendant from manufacturing and selling his goods, unless he stamps upon them the words "not the original Rogers," or "not connected with the original Rogers." As was said in Allegretti v. Keller (C. C.) 85 Fed. 643, this "saves the complainant's rights, and works no hardship to an honest defendant."

The decree must therefore be reversed, and the record remitted to the Court of Chancery, in order that a decree may be made in accordance with this opinion. The complainant is entitled to costs in the Court of Chancery and in this court.

(74 N. J. L. 847) HADEN v. BAMFORD BROS. SILK MFG.

CO.

(Court of Errors and Appeals of New Jersey. June 17, 1907.)

EXCEPTIONS, BILL OF-WAIVER-MOTION FOR NEW TRIAL.

The granting of a rule to show cause why a new trial should not be granted is a waiver of all bills of exception held by the party applying for the rule which are not therein expressly reserved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Exceptions, Bill of, § 35.]

Error to Supreme Court.

Action by John J. Haden against the Bamford Bros. Silk Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

PER CURIAM. The writ of error in this case has brought before us a judgment of the Supreme Court affirming a judgment of the Passaic circuit court.

It appears by the record returned by the writ of error, and by the outbranches of the record brought up by a certiorari, that the case presented to the Supreme Court on which the judgment complained of was entered was as follows: Haden, the defendant in error, had obtained a verdict against the Bamford Bros. Silk Manufacturing Company in an action in the Passaic circuit court. whereon judgment had been entered, and thereupon the company had sued out a writ of error from the circuit court, which writ of error, upon motion of the company, was afterwards dismissed without prejudice. Thereupon the company applied to the Passaic circuit court for a rule to show cause why the judgment should not be set aside. which rule was allowed, brought to hearing, No and discharged by said circuit court. points were reserved in the rule.

After

On

ward the company sued out another writ of error, which brought the record before the Supreme Court. Upon the return of that writ of error, the company assigned various errors, 17 of which were founded upon exceptions taken at the trial, and the remaining one was the general assignment of error. motion in behalf of Haden, the Supreme Court struck out all the assignments of error, excepting the general one, on the ground that the company, having applied for and been granted a rule to show cause in the circuit court, thereby waived its bill of exceptions, except on points reserved in the rule, and, as no points had been reserved in the rule, there were no exceptions on which to found the assignments. After striking out these assignments of error, the Supreme Court affirmed the judgment, finding no error pointed out by the general assignment. this court, upon the return of the writ of error bringing up the judgment of the Supreme Court, assignments of error were filed, embracing those which had been presented to the Supreme Court and stricken out, and also an assignment questioning the correctness of the order of the Supreme Court striking out the 17 assignments filed in that court.

In

It is contended that, if we find the order of the Supreme Court striking out the assignments erroneous, the other assignments are properly before us for consideration. Without determining whether this contention is correct, or whether, if the assignments were not properly stricken out, the record should not be sent back for further consideration by the Supreme Court, we are of opinion that the assignments were properly stricken out by that court upon the ground stated in the opinion of Mr. Justice Fort, reported in 63 Atl. 7.

It thus appearing that the seventeen assignments were properly eliminated from the record, the judgment of the Supreme Court was correct, as there was no error pointed out by the general assignment.

The judgment must be affirmed.

CORPORATIONS
TRACT OF EMPLOYMENT COMPENSATION
MODIFICATION OF CONTRACT.

OFFICERS-AUTHORITY-CON

The plaintiff was employed by a water supply company as timekeeper of the men employed in the erection of a reservoir dam at its waterworks. He was employed by C., a stockholder and director of the company, at $100 per month. When he began the work, which continued over two years, he found his name entered upon the pay roll at $75 per month. He received his wages at the latter rate under protest to the bookkeeper, and upon being advised to do so by C., who promised that the balance would be paid plaintiff at the end of the work. the completion of the work, the defendant refused to pay the balance of the wages demanded,

After

and suit was brought for its recovery. At the trial motions to nonsuit and direct a verdict were made on the ground that C. was without authority to make the contract for the company, and on the further ground of acquiescence. The evidence showed that C. was general manager of the company in the erection of the dam and was permitted to employ the help necessary and to fix the wages; but, if a question was raised as to the rate of wages, the executive committee, of which C. was one, must approve. This limitation of authority, however, was not known to plaintiff. The motions were denied by the trial judge. On review, it was held that C. was acting as general agent in the employment of men at the works, and that the agency to employ carried with it the necessary and usual counterpart of a hiring, which is to employ and pay or fix a price, that the receipt of the reduced wages under protest was not such an acquiesto work an abrogation of the contract, and that the refusal to nonsuit or direct a verdict was right.

cence as

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 1614.] (Syllabus by the Court.)

Error to Supreme Court.

Action by Patrick Kelly against the Jersey City Water Supply Company. Judgment for plaintiff, defendant brings error. Affirmed. William D. Edwards and Edwin F. Smith, for plaintiff in error. McDermott & Enright, for defendant in error.

HENDRICKSON, J. This writ brings up for review a judgment entered upon a verdict returned at the Morris circuit. The plaintiff, Patrick Kelly, sues to recover a balance claimed to be due for wages as a timekeeper for the defendant company while in its service at Boonton for a period of over two years, commencing September 24, 1899, while erecting its reservoir dam there. He was employed, as he testified, by one Nicholas K. Connolly, who was largely interested in the defendant company and was one of its directors, at the stipulated price of $100 per month. After entering the service he found he was entered upon the pay roll at the rate of $75 per month. He protested to the bookkeeper who had charge of the pay roll when he saw this, and was advised by him to accept that until Mr. Connolly, who was ill, should come out of the hospital at New York; that about two months later he saw Mr. Connolly, and reported the situation to him, who repeated that the contract of hiring was at $100 a month, but, as they had got things mixed so, he said he advised the plaintiff to accept the amount on the pay roll, saying that at the completion of the work they would pay him the same as they did in Philadelphia, where plaintiff had been working for Connolly when he was hired, which was at the rate of $100 per month. The plaintiff thereupon continued in the company's employ until the completion of the work, and received wages each month at the rate stated in the pay roll. The work was not completed until the fall of 1904, but in the meantime, in February, 1901, Mr. Connolly died. Plaintiff in September, 1904, demanded a settlement for balance claimed to

be due under the contract, and, payment being refused, this action was brought. At the trial the jury returned a verdict for the plaintiff of $718.25. A motion was made to nonsuit at the close of plaintiff's evidence, and also to direct a verdict for the defendant when both sides had rested, which were refused, and exceptions to the rulings were duly taken and allowed, and error has been assigned thereon. The ground of the motions mainly insisted upon here was that no authority was shown in Mr. Connolly to make such a contract for the company; that if he had authority to employ men, he had no power to fix the wages, without the sanction of the executive committee; that he was a special agent only; and that plaintiff was therefore bound to ascertain the extent of his power as such, and, if he dealt with the agent without such inquiry, it was at his own risk.

It may be necessary, in determining the validity of this exception, to briefly refer to other facts in evidence, in addition to those already stated. There was evidence which was without contradiction that Mr. Connolly was general manager of the company in the work at the dam and in the stone quarry nearby, which was worked in connection therewith; that Connolly was actually in charge of the work at the dam until his death, except when he was ill; that he employed other men for the company upon the work. Defendant's witness Mr. Kennedy, a director, testified that the engineer's general office staff (in which the plaintiff was included) were employed by Mr. Connolly and himself; that "the men who performed the work were oftentimes employed by Mr. Connolly or by any foreman or superintendent who had jurisdiction." He testified, further, that "he had power to fix salaries he thought, and Mr. Connolly had also"; and that "whenever there was a question raised the executive committee approved it." He further testified that Connolly was in charge of the physical work there, and that lots of men were employed there that he (witness) did not know about. There was no testimony, however, to show that the plaintiff had any knowledge or information that there was any limitation upon the authority of Connolly to fix the wages of the men employed at the time of the contract or during plaintiff's service. Therefore such limitation, if it existed, would not bind plaintiff. 2 Parsons on Contracts, 57. Nor does it appear that plaintiff was in any way connected with the defendant corporation so as to be charged with knowledge of the actual powers of Mr. Connolly as manager. We think it apparent from the evidence that, so far as the plaintiff or the public was concerned, Connolly was acting at the time he made this contract, not as special agent, but as general agent of the company, in the work at Boonton and in the employment of men upon the work, including the plaintiff. At any rate, in so doing he was acting within

the apparent authority of the company as defined in Fifth Ward Savings Bank v. First Nat. Bank, 48 N. J. Law, 513-527, 7 Atl. 318. And was it within the general scope of the agency to employ to fix with the employé the rate of wages? We think it was. The law is that a contract of hiring and service comprehends, not only an engagement to serve upon the one part, but upon the other an engagement to employ and pay. 2 Parsons on Cont. 44. It is a settled principle, also, that, "where an agent is employed to transact some specific business, and only that, yet he binds his principal by such subordinate acts as are necessary to or are usually properly done in connection with the principal act, or to carry the same into effect." 1 Parsons on Cont. 57. We think, therefore, that the ground alleged was insufficient to justify a nonsuit or a direction for the defendant, and that the motions to do so were properly refused. Nor do we think the ground of acquiescence, by plaintiff, by his receipt of the $75 per month on pay days, sufficient to justify the court in granting a nonsuit or directing a verdict. The plaintiff received these payments only under protest to the bookkeeper in charge of the pay roll, and after assurance by Connolly that the balance would be paid at the close of the work. Nor do we think there was error in that part of the charge which reads: "Mr. Connolly, as the evidence shows, was in charge of the employing of workmen at or near Boonton for this company, and if he did employ this plaintiff under a contract of this character, the court charges that he had power to do so, and that from its acceptance of the plaintiff's services the defendant is estopped from denying Mr. Connolly's authority." We think this was justified upon the principles already stated above. Our conclusion is therefore that the judgment below should be affirmed.

(74 N. J. L. 619) PIVER v. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. June 19, 1907.)

RAILROADS INJURIES TO PERSONS ON OR NEAR TRACKS - ACTIONS-SUFFICIENCY OF EVIDENCE.

In an action against a railroad company for injuries caused by defendant's failure to keep a passageway over its tracks in proper repair, evidence considered, and held insufficient to show that the injury was so caused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, § 1154.]

Garrison and Vroom, JJ., dissenting. Error to Circuit Court, Camden County. Action by Elijah Piver against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Thomas L. Gaskill, for plaintiff in error. John W. Wescott, for defendant in error.

GUMMERE, C. J. The plaintiff, Piver, while driving down Fourth street, in the

city of Camden, in December, 1904, was thrown from his wagon while crossing the tracks of the defendant company where they intersect that street, and quite badly hurt. He seeks by this suit to recover from the defendant company compensation for his injuries, basing his claim upon the allegation that the accident was due to the failure of the defendant to keep in proper repair the passageway over its tracks. The trial of the case resulted in a verdict and judgment in favor of the plaintiff. The present writ brings up that judgment for review.

According to the testimony of the plaintiff upon the witness stand, the accident happened under the following conditions: He was driving down Fourth street, toward the railroad crossing, upon the trolley tracks which were laid in that street. When he came to the railroad crossing, and had passed over one, and perhaps two, tracks, one of the feet of his horse became fast, causing the animal to fall. The sudden checking of the wagon precipitated the plaintiff out of it and upon the roadway. The plaintiff himself, and one Gladney, who was on the wagon with him at the time of the accident, are the only witnesses called in his behalf who testified to the happening of the accident, and they both agree that it was caused by the foot of the horse becoming caught. Neither of them, however, was able to state in what it was that the animal's foot became fastened. The plaintiff says: "My horse got his foot fast someway. I don't know, it was SO quick as that, so fast it threw me. *

I was thrown over to the left of the horse. The horse fell to the right. His right foot was fast, and I went over to the left." He was then asked: "Q. What happened to the horse when his foot was caught? A. Well, he was so fast that some man there- Q. Well, was the horse thrown, or did he stand up? A. He fell over to the right, threw him on his side over to the right. Q. Was he held there in that position? A. Held so fast that some man had to take an iron crowbar, and pry his foot. Q. You saw him pry his foot out, did you? A. Yes, sir." Gladney, being asked to tell what he recollected of the accident, said: "As we got on the track, the horse throwed Mr. Piver, kind of catched himself with his foot, and Mr. Piver went out with the lines in his hands on his face, and he had no more was just raising up, and the horse made a start and throwed me down between the shafts and his legs, and the horse fell on me." He was then asked: "Q. What was the matter with the horse? A. That I don't know. Q. Do you know whether the horse got caught or not? A. I don't know nothing. After I was taken out, I seen a man with a crowbar prying his foot out; that is all I know. Q. Well, you afterwards saw them prying the horse's foot out? A. After they were taking me out, as I was

getting on my feet, I seen a man prying the horse's foot out." This is the whole of the testimony offered on behalf of the plaintiff to support his contention that the catching of his horse's foot was due to the defective condition of the crossing; and it may well be doubted whether it was sufficient to support a finding of dereliction of duty on the part of the defendant.

Assuming, however, that it was sufficient to call upon the defendant for an explanation, under the doctrine of Bahr v. Lombard, Ayres & Co., 53 N. J. Law, 233, 21 Atl. 190, 23 Atl. 167, and Bien v. Unger, 64 N. J. Law, 596, 46 Atl. 593, the proofs submitted on behalf of defendant demonstrated that the accident to the plaintiff was not the result of any lack of care on the part of the company in keeping this crossing in proper repair. As has already been intimated, the accident occurred at a point where the defendant company's tracks were crossed by the tracks of a street railway company, and it was necessary that the intersection of the tracks should be so arranged as to provide for the safety both of travelers upon the street railway and those upon the defendant's road. For this purpose, the defendant company installed what is called a "cross-frog." This frog was of standard pattern, and consisted of a main rail upon which the cars were run, and a guard rail to prevent them from leaving the main rail. The distance between the main rail and the guard rail of this frog was 14 inches, and this space was absolutely necessary for the play of the flange of the car wheels. It was between these two rails that the foot of plaintiff's horse was caught, presumably by the calk of the shoe becoming wedged in the space. Two witnesses produced on the part of the defendant testified to this fact. One of them, Mahoney, was a gateman in the employment of the company, stationed at this point, and the other, Ginnelly, was a carpenter in its employ, who was passing the place where the accident occurred on his way to dinner. Ginnelly testifies that he pried the horse's foot loose with a crowbar, and Mahoney testifies to the same thing. No attempt was made on the part of the plaintiff to impeach the credibility of either of these witnesses, and their story is not contradicted by anything testified to on behalf of the plaintiff. It must be accepted, therefore, as true, and it demonstrates that the accident was not the result of any neglect of duty on the part of the defendant company in maintaining in good repair a proper passageway over its railroad, and, that being so, it is under no legal liability to answer to the plaintiff for the injuries which he received.

The judgment under review should therefore be reversed.

GARRISON and VROOM, JJ., dissent.