3 F.(2d) 9 105 Am. St. Rep. 778, 2 Ann. Cas. 216; 38 and its acquiescence in the performance of Cyc. 867. [2] The evidence shows that the use of the plaintiff's trade-name by the many local offices, under the sanction of contracts made by the plaintiff assuming to license the use of the trade-name, has caused the name to lose its distinctiveness as the trade-name of the plaintiff. The service rendered to teachers and officers of schools has for many years represented generally to such persons and to the public, not the efforts, the experience, or the responsibility of the plaintiff, but of the persons conducting these local offices. As was said in Powell v. Birmingham Vinegar Brewing Co., 2 Ch. D. (L. R. 1896) 54, 73: "There is another way in which a name originally a good trade-name may lose its character and become publici juris; i. e., when the first person using the name does not claim the right to prevent others from using it, and allows others to use it without complaint. The name then comes to denote the article and nothing more; the name becomes publici juris, and any one is at liberty to make the article, and call it by the name by which it is usually known." The question of abandonment of a trade name or mark is a question of intent (Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 31, 21 S. Ct. 7, 45 L. Ed. 60; Baglin v. Cusenier Co., 221 U. S. 580, 598, 31 S. Ct. 669, 55 L. Ed. 863; Hanover Milling Co. v. Metcalf, 240 U. S. 403, 419, 36 S. Ct. 357, 60 L. Ed. 713), and abandonment is not necessarily to be inferred from mere failure to prosecute infringement (Actiengesellschaft, etc., v. Amberg, 109 F. 151, 48 C. C. A. 264; Menendez v. Holt, 128 U. S. 514, 523, 9 S. Ct. 143, 32 L. Ed. 526; Ansehl v. Williams [C. C. A.] 267 F. 9, 13; Williams v. Adams, Fed. Cas. No. 17,711), but may be inferred from disuse, lapse of time, and other circumstances evidencing the intention to discontinue its distinctiveness (French Republic v. Saratoga Vichy Co., 191 U. S. 427, 437, 24 S. Ct. 145, 48 L. Ed. 247; Royal Baking Powder Co. v. Raymond [C. C.] 70 F. 376, 381; Eiseman v. Schiffer [C. C.] 157 F. 473; Blackwell v. Dibrell, Fed. Cas. No. 1,475; Dietz v. Horton Mfg. Co., 170 F. 865, 872, 96 C. C. A. 41; Brower v. Boulton [C. C.] 53 F. 389; Cohen v. Nagle, 190 Mass. 4, 11, 76 N. E. 276, 2 L. R. A. [N. S.] 964, 5 Ann. Cas. 553; Corkran, Hill & Co. v. A. H. Kuhlemann Co., 136 Md. 525, 533, 111 A. 471, 474). The intention of the plaintiff has been plainly manifested by the formal contracts these contracts, whereby, for a monetary consideration, it has for a long time allowed its trade-name to represent to the public the business of others. After thus misleading the public, it is not in position to ask the aid of a court of equity to protect the reputation of that name as an indication of the plaintiff's services. This conclusion makes it unnecessary to consider the effect of the representations in the plaintiff's advertisement, contrary to the fact, that it is the proprietor of these local offices. See Manhattan Medicine Co. v. Wood, 108 U. S. 218, 2 S. Ct. 436, 27 L. Ed. 706; Worden v. California Fig Syrup Co., 187 U. S. 516, 23 S. Ct. 161, 47 L. Ed. 282. The decree will be affirmed. BYERS v. FEDERAL LAND CO. et al. * (Circuit Court of Appeals, Eighth Circuit. December 1, 1924.) No. 6581. I. Vendor and purchaser 37 (6)-Misrepresentation of ownership by vendor held immaterial. A representation by defendant that it was the owner of land which it contracted to "convey or cause to be conveyed" to plaintiff held not a material misrepresentation, which invalidated the contract, where defendant held a contract for the purchase of the land and, the owner advised plaintiff that on performance of his contract the land would be conveyed to him. 2. Fraud 11(2)-Statement of value of land ordinarily not representation of fact. A statement of the monetary value of prop erty with no definite market value, such as mines or land, is generally made and understood as an expression of opinion only, and not as a representation of fact, and is not ordinarily an actionable misrepresentation. 3. Vendor and purchaser 37 (4)-Purchaser held not entitled to rely on statement of value. land, by agents for its sale, not shown to have been made in bad faith, held a statement of opinion only, on which the purchaser had no right to rely. A statement to a purchaser of the value of 4. Vendor and purchaser 37 (6)-Purchaser held entitled to rescind for failure of seller to give possession. An agreement by the seller of land under contract to give possession to the purchaser at once, and a lease of the land from him by the president of the selling corporation for a term of five years at a substantial rental, which lease he did not perform, where the seller was not in fact the owner of the land, nor in possession, and the purchaser was never given *Rehearing denied February 16, 1925. possession, held a material misrepresentation by conduct, which entitled the purchaser to rescission of the contract. Appeal from the District Court of the United States for the District of Wyoming; T. Blake Kennedy, Judge. Suit in equity by Charles E. Byers against the Federal Land Company and another. Decree for defendants, and complainant appeals. Reversed and remanded, with directions. J. W. James, of Hastings, Neb. (James & Danly and J. E. Willits, all of Hastings, Neb., and Walton & Watts, of Cheyenne, Wyo., on the brief), for appellant. pany had stated to the plaintiff, at the time of the preliminary negotiations leading up to the making of this contract, that the land was worth $35 an acre. The proofs were that the land was then worth about $15 per acre. The plaintiff lived at this land, which was situated about eight Hastings, Neb., several hundred miles from miles from Cheyenne, Wyo. The brokers, who made this statement as to value, also lived at Hastings and were engaged in the business of dealing in real estate. There was no relationship of special trust or confidence between them and the plaintiff, or between the vendor and the plaintiff. They also represented to the plaintiff that the Ray E. Lee, of Cheyenne, Wyo., for ap- Federal Land Company was the owner of pellees. Before STONE, Circuit Judge, and MUNGER and MILLER, District Judges. MUNGER, District Judge. This suit was brought for the cancellation of a contract for the purchase of land. The parties will be designated as in the trial court. The defendant the Federal Land Company was a corporation organized under the laws of Wyoming and doing business at Cheyenne, Wyo. The other defendant, J. R. Carpenter, was its president. The plaintiff entered into a written contract on January 23, 1920, to purchase from the Federal Land Company 320 acres of land in Wyoming, for which he was to pay $2,800 in cash and a balance of $8,400, with interest, in 50 semiannual installments. In the contract the Federal Land Company agreed "to convey or cause to be conveyed" to the plaintiff the land mentioned when the plaintiff should have made these payments. The plaintiff was given the privilege, if he was not in default, of paying any amount on the contract at any interest-paying date. This suit was begun September 15, 1922. The plaintiff's bill alleged the making of this contract, and prayed for its cancellation, and for recovery of the amounts he had paid under it. The grounds for his relief, shortly stated, were that the Federal Land Company had induced the plaintiff to sign this contract by fraudulently representing to him, contrary to the facts: (1) That the Federal Land Company was the actual owner of the land; (2) that it was in the actual possession thereof; and (3) that it was of the value of $35 per acre. The answers denied the making of these alleged representations. At the trial there was evidence that the real estate brokers acting as agents for the Federal Land Com this land. Before the contract was executed, the other defendant, Carpenter, who was the president of the Federal Land Company, came to Hastings, and he there executed the contract of sale on behalf of the Federal Land Company at the same time that the plaintiff signed it. The written contract for the sale of the land contained no statement as to the possession of the land after its execution, except as implied in the covenant to convey the land when final payment had been made. There was no evidence of any direct statement to the plaintiff that the Federal Land Company was in possession of this land, but the plaintiff testified that the possession of the land was to be given at once upon the execution of the contract, and as a part of the same transaction there was a lease executed by the plaintiff to the defendant Carpenter of this land and of some adjoining land for a period of five years beginning on the March 1st following, at an annual cash rental of $1,000 per year, payable annually, with an agreement therein that Carpenter should cause to be broken 160 acres of the sod on the land agreed to be conveyed in 1920, and a like amount in 1921, for which he was to be paid from the rental. The plaintiff had not seen this land prior to the contract and relied on the statements made by the agents and Carpenter. He saw the land in March, 1920. He paid the installment of the purchase price in September, 1920, when it was due, and paid the taxes due upon the land in the January following; but it was not shown that he knew the facts as to possession or value at these times. These facts and others were brought out in the testimony, and at the close of the plaintiff's evidence, the court sustained a motion by the defend 3 F.(20) 9 [1] It was undisputed in the evidence that the plaintiff had acted upon a representation on the part of the defendant Federal Land Company, that this land was owned by it, but in fact the land was owned by another company. This company, however, had entered into a written contract with the Federal Land Company, prior to the date of the plaintiff's contract, to sell this land to the Federal Land Company, and it appeared that the land company which had agreed to sell the land to the Federal Land Company wrote several letters to the plaintiff, many months before this suit was brought, stating that a deed would be delivered to plaintiff at any time when he had complied with his contract. The plaintiff did not answer these letters. It was one of the essentials of the plaintiff's case to prove not only a misrepresentation, but a material misrepresentation. The plaintiff did not undertake to prove the inability of the Federal Land Company to comply with its contract to "convey or cause to be conveyed" this land. What evidence was given tended to indicate its ability and willingness to have the title conveyed to the plaintiff upon his compliance with his contract. The representation as to ownership was not a material misrepresentation to the plaintiff under these circumstances. ants to dismiss the plaintiff's bill on the 665, 673, 14 S. Ct. 219, 37 L. Ed. 1215), ground that no actionable misrepresenta- but a statement as an opinion, if it is not tions had been proved, and the plaintiff the real opinion may be a misrepresentahas appealed. tion (Haygarth v. Wearing, L. R. 12 Eq. Cas. 327, 328; Kerr on Fraud and Mistake [3d Ed.] 51; 26 Corp. Jur. 1093-1219). A statement of the monetary value or worth of an article, although not expressly phrased as an opinion or estimate, may nevertheless be a representation of an opinion and not of a fact. This is especially true as to property without a definite or known value, or as to property which has only a speculative value. A statement of the value of property for which there is a generally accepted market price, such as bonds of the government, grain or cattle, may be a misrepresentation of a fact. Zimmern v. Blount, 238 F. 740, 151 C. C. A. 590. A statement as to value of property may also be actionable as a fraudulent representation of fact under some circumstances, where there is a special reliance placed upon it and superior knowledge on the part of the maker. Southern Trust Co. v. Lucas, 245 F. 286, 157 C. C. A. 478; 2 Pom. Eq. Jur. § 878. In such a case it may also be said that the statement of value when the value is known to be different from that stated is a fraudulent misrepresentation of an opinion as existing that does not exist. A statement of the monetary value of property with no definite market value such as a mine, an invention, old and used goods or of lands, is generally made and understood as an expression of opinion only, and not as representation of a fact, and is not ordinarily an actionable misrepresentation. Kimber v. Young, 137 F. 744, 749, 70 C. C. A. 178; Henderson v. Henshall, 54 F. 320, 329, 4 C. C. A. 357; Harvey v. Young, 1 Yelv. 21, 80 Eng. Rep. 15; Page v. Parker, 43 N. H. 363, 368, 80 Am. Dec. 172; Van Epps v. Harrison, 5 Hill (N. Y.) 63, 69, 40 Am. Dec. 314; Medbury v. Watson, 6 Metc. (Mass.) 246, 259, 39 Am. Dec. 726; Noetling v. Wright, 72 Ill. 390, 391; Cooper v. Lovering, 106 Mass. 77, 79; 1 Sug. on Vendors 3; 2 Black on Rescission, § 424; 35 L. R. A. 418; 37 L. R. A. 605. The representation as to the value of the land, as already stated, was made by the real estate brokers who lived in the same city as the plaintiff, in Hastings, Neb. He testifies that they told him the land was worth $35 an acre, was cheap at $35. He testified at one time that he relied on the representation as to ownership and possession and at another time that he relied on the representations. There was no evidence that suggested that these brokers had any special knowledge of or had ever seen this land, or that the plaintiff announced any special reliance on their statement of value. [2] An honest opinion as to the monetary value of property, stated as an opinion is not a fraudulent misrepresentation (Hepburn v. Dunlop, 1 Wheat. 179, 189, 4 L. Ed. 65; Gordon v. Butler, 105 U. S. 553, 556, 26 L. Ed. 1166; Southern Development Co. v. Silva, 125 U. S. 247, 255, 256, 8 S. Ct. 881, 31 L. Ed. 678; Lehigh Zine & Iron Co. v. Bamford, 150 U. S. ban and rural lands. For land of the nature of that involved here situated in a grazing region, somewhat unreliable for the raising of crops without irrigation, but located at a convenient distance from a city, the capital of the state, there was often a speculative, but real, sale value in excess of what is now regarded as the fair value at that time. But the purchaser of lands of this nature usually understands that no definite value can be assigned to such property, and that an expression of value is but an opinion, even though it is not stated as the thought, opinion, or estimate of the speaker. What was said by these brokers was evidently intended as but an opinion, and the plaintiff cannot be heard to say that he relied upon such an opinion. [4] The remaining claim of misrepresentation relates to the possession of the land. While there was no statement, in words, that the Federal Land Company held possession of the land, the statement that possession would be given to the plaintiff at once, coupled with the making of the lease, whereby Carpenter assumed to take the land as lessee after the 1st of March, and to plough it, and to pay rent therefor to plaintiff for five years, was intended to convey the impression that possession was held by the Federal Land Company, and was surrendered to the plaintiff, and accepted from him by Carpenter, because a lease of lands ordinarily imports the transfer of possession. Thomas v. Railroad Co., 101 U. S. 71, 78, 25 L. Ed. 950; 35 Corp. Jur. 1139. The evidence shows that the Federal Land Company never had possession of this land, that the plaintiff was never given possession, and Carpenter did not offer to perform his part of the lease. A misrepresentation may be made by words, but it may also consist of conduct. Mudsill Min. Co. v. Watrous, 61 F. 163, 168, 9 C. C. A. 415; 2 Pom. Eq. Jur. § 877; 1 Bigelow on Fraud. 467; 26 Corp. Jur. 1067. The misrepresentation as to the delivery of possession was material, because of the value of such possession during the long period that the contract might continue, and is evidenced by the substantial amount that Carpenter agreed to pay as yearly rent. In view of this false representation, and of the fact that plaintiff was not shown to have lost his right to ask for a rescission of his contract, the court should not have sustained the motion to dismiss the bill as to the Federal Land Company. *Rehearing denied March 18, 1925. An order will be entered, remanding the case, with directions to enter a decree as prayed in plaintiff's bill against the Federal Land Company. cestimarido need 268692 69 ₤Ed. // 60, 45 Sup Ct. 511. HERCULES POWDER CO. v. RICH. * (Circuit Court of Appeals, Eighth Circuit. December 1, 1924.) No. 6494. 1. Sales261 (6)-Statement of fact by seller respecting quality of goods sold constitutes "warranty." A statement of fact respecting the quality or character of goods sold, made by the seller to induce the sale, and relied on by the buyer, constitutes a "warranty." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Warranty.] 2. Sales 445 (2)-Whether parol statement by seller is warranty generally question for the jury. statement by a seller amounts to a warranty is Generally the question whether a parol one of fact for the jury. 3. Sales 441 (2)-Finding of warranty of safety fuse held sustained by evidence. A finding by a jury that blasting fuse sold by defendant to plaintiff was warranted to be safety fuse, which burned at a speed of a foot per minute, held supported by evidence that defendant was told the purpose for which the fuse was to be used, and that no other kind could be used, and stated that' was the kind which would be shipped. 4. Principal and agent 104(2) — Implied authority of agent to give warranty. Where defendant had a branch store in charge of its general sales agent for the state, in which it sold blasting fuse of different speeds of burning, a jury held justified in finding, in the absence of express limitation, that the agent had implied authority to warrant that fuse sold would burn at the particular speed required by the purchaser. 5. Sales 273(3)-Implied warranty that article is reasonably fit for the purpose for which it is sold. Where one contracts to supply an article in which he deals to be used for a particular Where defendant denies an express warranty of an article sold to plaintiff, he cannot assert that the express warranty, alleged by plaintiff and denied, is a bar to a warranty which the law would imply. Certiorari denied 45 S. Ct. 511, 60 L. Ed. 7. Appeal and error 3 F.(2d) 12 173(1)-Defense not presented to trial court cannot be considered by appellate court. A defense not made on the trial, nor in any way presented to the trial court, cannot be raised for the first time in the appellate court. 8. Trial 251 (8)-Instruction held properly refused as not applicable to the issues. In an action to recover damages caused by a premature explosion of dynamite, alleged to have resulted from a breach of warranty of the burning speed of the fuse sold by defendant to plaintiff, where it was alleged as a defense that the explosion resulted from a different cause through plaintiff's negligence, which defense was fully submitted to the jury, a requested instruction on the subject of contributory negligence held properly refused as not applicable to the issues. In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge. Action at law by J. F. Rich against the Hercules Powder Company. Judgment for plaintiff, and defendant brings error. Af firmed. E. Howard Morphy, of St. Paul, Minn., and William R. Robertson, of Joplin, Mo. (Gould G. Rheuby, of Wilmington, Del., and John M. Bradford and Carl W. Cummins, both of St. Paul, Minn., on the brief), for plaintiff in error. G. O. Patterson, of Clarksville, Ark., and R. W. Robins, of Conway, Ark. (Patterson & Ragon, of Clarksville, Ark., and J. H. Thompson, of Little Rock, Ark., on the brief), for defendant in error. Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge. KENYON, Circuit Judge. Parties will be designated as in the trial court. Defendant is a corporation organized under the laws of the state of Delaware, and engaged in selling powder, dynamite, explosives, and fuses to be used in exploding blasts. In 1920 it had a branch office in Little Rock, Ark., where sales were made. The plaintiff in 1920 was a subcontractor, engaged in the construction of a highway in Faulkner county, Ark., and in the prosecution of said work used dynamite for the purpose of blowing stumps from the right of way of the prospective highway. In the month of August, 1920, he purchased from defendant at its office in Little Rock, Ark., certain fuses for the purpose of exploding dynamite, and claims that one Bailey in charge of said office at Little Rock sold him a fuse which he guaranteed to be a slow burning safety fuse with a burning speed not to exceed 1 foot per minute. Plaintiff claims that at the time he purchased said fuse he explained his needs and requirements to defendant, and that defendant was fully advised of the purposes for which the fuse was to be used. He purchased 4,000 feet of fuse, which was shipped to him. This fuse had been manufactured by the Ensign-Bickford Company of Simsbury, Conn. Plaintiff used the same in his work of blowing stumps from the right of way of the highway, and claims that in the belief that it was a slow burning fuse of the kind he had ordered from the defendant he put in a charge of dynamite for the purpose of blasting out a stump in the right of way, and connected with said dynamite a cap and piece of said fuse about 20 inches in length, and in the usual and proper man ner set fire to the same in the belief that he would have time to gain a place of safety before the explosion of the dynamite. Plaintiff claims, however, that said fuse, instead of burning 1 foot to each minute, burned instantaneously, and caused the dynamite to explode before plaintiff had an opportunity to reach a place of safety; that this resulted in serious injury to plaintiff, permanently destroying his sight, bruising and lacerating his head, face, and body, and that he was permanently incapacitated for doing work or labor of any kind. Plaintiff bases his right to recover upon the alleged fact that the fuse sent him was not the kind ordered by him and agreed by plaintiff's agent to be sent. Defendant, in addition to denying the claims of plaintiff as to warranty, alleges that the injuries suffered by plaintiff were directly contributed to by his own recklessness and negligence in the manner and method of using the material employed in and about the work. The court required plaintiff to elect whether he would rely upon the cause of action pleaded arising out of a tort, or the one alleging breach of warranty. Election was made to rely upon breach of warranty. At the close of plaintiff's testimony defendant requested the court to direct a verdict in favor of the defendant, which motion was denied. At the close of all the testimony defendant moved the court to direct the jury to return a verdict in its favor, which was likewise denied. At the proper time defendant requested certain instructions which appear in the record, which were refused, and exceptions to the action of the court in refusing the same were preserved. The jury returned a verdict for plaintiff for $30,000. The questions actually involved arise from the refusal of the court to charge the jury |