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3 F.(20) 9 105 Am. St. Rep. 778, 2 Ann. Cas. 216; 38 and its acquiescence in the performance of Cyc. 867.

these contracts, whereby, for a monetary [2] The evidence shows that the use of consideration, it has for a long time allowed the plaintiff's trade-name by the many local its trade-name to represent to the public the offices, under the sanction of contracts made business of others. After thus misleading by the plaintiff assuming to license the use the public, it is not in position to ask the of the trade-name, has caused the name to aid of a court equity to protect the repulose its distinctiveness as the trade-name of tation of that name as an indication of the the plaintiff. The service rendered to teach- plaintiff's services. ers and officers of schools has for many This conclusion makes it unnecessary to years represented generally to such persons consider the effect of the representations in and to the public, not the efforts, the ex- the plaintiff's advertisement, contrary to the perience, or the responsibility of the plain- fact, that it is the proprietor of these local tiff, but of the persons conducting these lo- offices. See Manhattan Medicine Co. v. cal offices. As was said in Powell v. Bir- Wood, 108 U. S. 218, 2 S. Ct. 436, 27 L. mingham Vinegar Brewing Co., 2 Ch. D. (L. Ed. 706; Worden v. California Fig Syrup R. 1896) 54, 73: “There is another way in Co., 187 U. S. 516, 23 S. Ct. 161, 47 L. Ed. which a name originally a good trade-name 282. may lose its character and become publici The decree will be affirmed. 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

BYERS V. FEDERAL LAND CO. et al. * more; the name becomes publici juris, and (Circuit Court of Appeals, Eighth Circuit. any one is at liberty to make the article, and

December 1, 1924.) call it by the name by which it is usually

No. 6581. known.” The question of abandonment of 1. Vendor and purchaser w37(6)-Misreprea trade name or mark is a question of in- sentation of ownership by vendor held immatent (Saxlehner v. Eisner & Mendelson Co., terial. 179 U. S. 19, 31, 21 S. Ct. 7, 45 L. Ed. 60; A representation by defendant that it was Baglin v. Cusenier Co., 221 U. S. 580, 598, the owner of land which it contracted to "con31 S. Ct. 669, 55 L. Ed. 863; Hanover Mill key or cause to be conveyed” to plaintiff held

not a material misrepresentation, which ining Co. v. Metcalf, 240 U. S. 403, 419, 36 validated the contract, where defendant held a S. Ct. 357, 60 L. Ed. 713), and abandon- contract for the purchase of the land and, the ment is not necessarily to be inferred from owner advised plaintiff that on performance of

his contract the land would be conveyed to him. mere failure to prosecute infringement (ACtiengesellschaft, etc., v. Amberg, 109 F. 151, 2. Fraud omall(2)—Statement of value of land 48 C. C. A. 264; Menendez v. Holt, 123

ordinarily not representation of fact. U. S. 514, 523, 9 S. Ct. 143, 32 L. Ed.

A statement of the monetary value of prop526; Ansehl v. Williams [C.C. A.] 267 erty with no definite market value, such as

mines or land, is generally made and underF. 9, 13; Williams v. Adams, Fed. Cas. No. stood as an expression of opinion only, and 17,711), but may be inferred from disuse, not as a representation of fact, and is not lapse of time, and other circumstances evi- ordinarily an actionable misrepresentation. dencing the intention to discontinue its dis- . 3. Vendor and purchaser Om 37 (4)–Purchaser tinctiveness (French Republic v. Saratoga held not entitled to rely on statement of Vichy Co., 191 U. S. 427, 437, 24 S. Ct.

value. 145, 48 L. Ed. 247; Royal Baking Powder land, by agents for its sale, not shown to have

A statement to a purchaser of the value of Co. v. Raymond [C. C.] 70 F. 376, 381; been made in bad faith, held a statement of Eiseman v. Schiffer [C. C.] 157 F. 473; opinion only, on which the purchaser had no Blackwell v. Dibrell, Fed. Cas. No. 1,475; right to rely. Dietz v. Horton Mfg. Co., 170 F. 865, 872, 4. Vendor and purchaser Om 37(6)-Purchaser 96 C. C. A. 41; Brower v. Boulton [C. C.] held entitled to rescind for failure of seller 53 F. 389; Cohen v. Nagle, 190 Mass. 4, 11,

to give possession. 76 N. E. 276, 2 L. R. A. [N. S.] 964, 5

An agreement by the seller of land under

contract to give possession to the purchaser Ann. Cas. 553; Corkran, Hill & Co. v. A.

at once, and a lease of the land from him by H. Kuhlemann Co., 136 Md. 525, 533, 111 the president of the selling corporation for a A. 471, 474).

term of five years at a substantial rental, which The intention of the plaintiff has been not in fact the owner of the land, nor in pos

lease he did not perform, where the seller was plainly manifested by the formal contracts session, and the purchaser was never given

*Rehearing denied February 16, 1925.

acre.

exe

possession, held a material misrepresentation pany had stated to the plaintiff, at the by conduct, which entitled the purchaser to re

time of the preliminary negotiations leadscission of the contract.

ing up to the making of this contract, that Appeal from the District Court of the the land was worth $35 an

The United States for the District of Wyoming; proofs were that the land was then worth T. Blake Kennedy, Judge.

about $15 per acre. The plaintiff lived at Suit in equity by Charles E. Byers this land, which was situated about eight

Hastings, Neb., several hundred miles from against the Federal Land Company and miles from Cheyenne, Wyo. The brokers, another. Decree for defendants, and com

who made this statement as to value, also plainant appeals. Reversed and remanded, with directions.

lived at Hastings and were engaged in the

business of dealing in real estate. There J. W. James, of Hastings, Neb. (James was no relationship of special trust or con& Danly and J. E. Willits, all of Hastings, fidence between them and the plaintiff, or Neb., and Walton & Watts, of Cheyenne, between the vendor and the plaintiff. They Wyo., on the brief), for appellant.

also represented to the plaintiff that the Ray E. Lee, of Cheyenne, Wyo., for ap- Federal Land Company was the owner of pellees.

this land. Before the contract was Before STONE, Circuit Judge, and cuted, the other defendant, Carpenter, who MUNGER and MILLER, District Judges. was the president of the Federal Land

Company, came to Hastings, and he there MUNGER, District Judge. This suit executed the contract of sale on behalf of was brought for the cancellation of a con

the Federal Land Company at the same tract for the purchase of land. The par- time that the plaintiff signed it. ties will be designated as in the trial court.

The written contract for the sale of the The defendant the Federal Land Company land contained no statement as to the poswas a corporation organized under the laws session of the land after its execution, exof Wyoming and doing business at Chey- cept as implied in the covenant to convey enne, Wyo. The other defendant, J. Ř. the land when final payment had been Carpenter, was its president. The plaintiff made. There was no evidence of any direct entered into a written contract on January statement to the plaintiff that the Federal 23, 1920, to purchase from the Federal Land Company was in possession of this Land Company 320 acres of land in Wyo- land, but the plaintiff testified that the posming, for which he was to pay $2,800 in session of the land was to be given at once cash and a balance of $8,400, with inter- upon the execution of the contract, and as est, in 50 semiannual installments. In the a part of the same transaction there was a contract the Federal Land Company agreed lease executed by the plaintiff to the de"to convey or cause to be conveyed” to the fendant Carpenter of this land and of some plaintiff the land mentioned when the adjoining land for a period of five years plaintiff should have made these payments. beginning on the March 1st following, at The plaintiff was given the privilege, if he an annual cash rental of $1,000 per year, was not in default, of paying any amount payable annually, with an agreement thereon the contract at any interest-paying date. in that Carpenter should cause to be broken

This suit was begun September 15, 1922. 160 acres of the sod on the land agreed to The plaintiff's bill alleged the making of be conveyed in 1920, and a like amount in this contract, and prayed for its cancella- 1921, for which he was to be paid from the tion, and for recovery of the amounts he rental. had paid under it. The grounds for his re- The plaintiff had not seen this land prilief, shortly stated, were that the Federal or to the contract and relied on the stateLand Company had induced the plaintiff to ments made by the agents and Carpenter. sign this contract by fraudulently repre- He saw the land in March, 1920. He paid senting to him, contrary to the facts: (1) the installment of the purchase price in That the Federal Land Company was the September, 1920, when it was due, and actual owner of the land; (2) that it was paid the taxes due upon the land in the in the actual possession thereof; and (3) January following; but it was not shown that it was of the value of $35 per acre.

that he knew the facts as to possession or The answers denied the making of these value at these times. These facts and othalleged representations. At the trial there ers were brought out in the testimony, and was evidence that the real estate brokers at the close of the plaintiff's evidence, the acting as agents for the Federal Land Com- court sustained a motion by the defend3 F.(20) 9 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. [1] It was undisputed in the evidence Cas. 327, 328; Kerr on Fraud and Mistake that the plaintiff had acted upon a repre- [3d Ed.] 51; 26 Corp. Jur. 1093–1219). sentation on the part of the defendant Fed- A statement of the monetary value or eral Land Company that this land was worth of an article, although not expressly owned by it, but in fact the land was phrased as an opinion or estimate, may owned by another company.

This com- nevertheless be a representation of an opinpany, however, had entered into a written ion and not of a fact. This is especially contract with the Federal Land Company, true as to property without a definite or prior to the date of the plaintiff's contract, known value, or as to property which has to sell this land to the Federal Land Com- only a speculative value. A statement of pany, and it appeared that the land com- the value of property for which there is a pany which had agreed to sell the land to generally accepted market price, such as the Federal Land Company wrote several bonds of the government, grain or cattle, letters to the plaintiff, many months before may be a misrepresentation of a fact. this suit was brought, stating that a deed Zimmern v. Blount, 238 F. 740, 151 C. C. would be delivered to plaintiff at any time A. 590. A statement as to value of propwhen he had complied with his contract. erty may also be actionable as a frauduThe plaintiff did not answer these letters. lent representation of fact under some cirIt was one of the essentials of the plain- cumstances, where there is a special relitiff's case to prove not only a misrepre- ance placed upon it and superior knowlsentation, but a material misrepresentation. edge on the part of the maker. Southern The plaintiff did not undertake to prove Trust Co. v. Lucas, 245 F. 286, 157 C. C. the inability of the Federal Land Company A. 478; 2 Pom. Eq. Jur. § 878. In such to comply with its contract to "convey or a case it may also be said that the statecause to be conveyed” this land. What ment of value when the value is known to evidence was given tended to indicate its be different from that stated is a fraudulent ability and willingness to have the title misrepresentation of an opinion as existing conveyed to the plaintiff upon his compli- that does not exist. A statement of the ance with his contract. The representation monetary value of property with no defias to ownership was not a material misrep- nite market value such as a mine, an invenresentation to the plaintiff under these cir- tion, old and used goods or of lands, is cumstances.

generally made and understood as an exTh representation as to the value of the pression of opinion only, and not as repland, as already stated, was made by the resentation of a fact, and is not ordinarily real estate brokers who lived in the same an actionable misrepresentation. Kimber city as the plaintiff, in Hastings, Neb. v. Young, 137 F. 744, 749, 70 C. C. A. He testifies that they told him the land 178; Henderson v. Henshall, 54 F. 320, was worth $35 an acre, was cheap at $35. 329, 4 C. C. A. 357; Harvey v. Young, 1 He testified at one time that he relied on Yelv. 21, 80 Eng. Rep. 15; Page v. Parkthe representation as to ownership and pos- er, 43 N. H. 363, 368, 80 Am. Dec. 172; session and at another time that he relied Van Epps v. Harrison, 5 Hill (N. Y.) 63, on the representations. There was no evi- 69, 40 Am. Dec. 314; Medbury v. Watson, dence that suggested that these brokers had 6 Metc. (Mass.) 246, 259, 39 Am. Dec. any special knowledge of or had ever seen 726; Noetling v. Wright, 72 Ill. 390, 391; this land, or that the plaintiff announced Cooper v. Lovering, 106 Mass. 77, 79; 1 any special reliance on their statement of Sug. on Vendors 3; 2 Black on Rescission, value.

§ 424; 35 L. R. A. 418; 37 L. R. A. 605. [2] An honest opinion as to the mone- [3] In this case there was no attempt tary value of property, stated as an opin- to prove that the agents who stated the ion is not a fraudulent misrepresentation value of this land were acting in bad faith, (Hepburn v. Dunlop, 1 Wheat. 179, 189, 4 or did not honestly believe that the land L. Ed. 65; Gordon v. Butler, 105 U. S. was worth what was represented as its val553, 556, 26 L. Ed. 1166; Southern De- It was a time of general speculation velopment Co. v. Silva, 125 U. Ş. 247, 255, in lands and overestimates of value that 256, 8 S. Ct. 881, 31 L. Ed. 678; Lehigh subsequent events have proved extravagant Zinc & Iron Co. v. Bamford, 150 U. S. were quite generally' assigned to both ur

ue.

ceve coråredence

45 Sup Ct. 511

ban and rural lands. For land of the na- An order will be entered, remanding the ture of that involved here situated in a case, with directions to enter a decree as grazing region, somewhat unreliable for prayed in plaintiff's bill against the Fedthe raising of crops without irrigation, but eral Land Company, located at a convenient distance from a city, the capital of the state, there was 268 ses 692 69 f Ed.1160, 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

HERCULES POWDER CO. V. RICH. * lands of this nature usually, understands

(Circuit Court of Appeals, Eighth Circuit. Dethat no definite value can be assigned to

cember 1, 1924.) such property, and that an expression of value is but an opinion, even though it is

No. 6494. not stated as the thought, opinion, or esti- 1. Sales 261(6)—Statement of fact by sell. mate of the speaker. What was said by

er respecting quality of goods sold constitutes these brokers was evidently intended as but

"warranty."

A statement of fact respecting the quality an opinion, and the plaintiff cannot be

or character of goods sold, made by the seller heard to say that he relied upon such an to induce the sale, and relied on by the buyer, opinion.

constitutes a "warranty." [4] The remaining claim of misrepresen- (Ed. Note.-For other definitions, see Words tation relates to the possession of the land. and Phrases. First and Second Series, War

ranty.) While there was no statement, in words, that the Federal Land Company held possession 2. Sales Cw445 (2)—Whether parol statement of the land, the statement that possession

by seller is warranty generally question for

the jury. would be given to the plaintiff at once, coupled with the making of the lease, statement by a seller amounts to a warranty is

Generally the question whether a parol whereby Carpenter assumed to take the

one of fact for the jury. land as lessee after the 1st of March, and to plough it, and to pay rent therefor to 3. Sales 6m441(2)-Finding of warranty of

safety fuse held sustained by evidence. plaintiff for five years, was intended to

A finding by a jury that blasting fuse sold convey the impression that possession was

by defendant to plaintiff was warranted to be held by the Federal Land Company, and safety fuse, which burned at a speed of a foot was surrendered to the plaintiff, and ac

per minute, held supported by evidence that cepted from him by Carpenter, because a

defendant was told the purpose, for which the

fuse was to be used, and that no other kind lease of lands ordinarily imports the trans- could be used, and stated that' was the kind fer of .possession. Thomas v. Railroad Co., which would be shipped. 101 U. S. 71, 78, 25 L. Ed. 950; 35 Corp. 4. Principal and agent ema 104 (2) – Implied Jur. 1139. The evidence shows that the

authority of agent to give warranty. Federal Land Company never had posses- Where defendant had a branch store in sion of this land, that the plaintiff was nev- charge of its general sales agent for the state, er given possession, and Carpenter did not in which it sold blasting fuse of different speeds offer to perform his part of the lease. A of burning, a jury held justified in finding, in

the absence of express limitation, that the misrepresentation may be made by words, agent had implied authority to warrant that but it may also consist of conduct. Mud- fuse sold would burn at the particular speed sill Min. Co. v. Watrous, 61 F. 163, 168, required by the purchaser. 9 C. C. A. 415; 2 Pom. Eq. Jur. § 877; 1

5. Sales w273(3)-Implied warranty that are Bigelow on Fraud. 467; 26 Corp. Jur.

ticle is reasonably fit for the purpose for 1067.

which it is sold. The misrepresentation as to the delivery Where one contracts to supply an article in of possession was material, because of the which he deals to be used for a particular value of such possession during the long or skill of the seller, there is an implied war

purpose, and the buyer trusts to the judgment period that the contract might continue, ranty that the article shall be reasonably fit for and is evidenced by the substantial amount the purpose to which it is to be applied. that Carpenter agreed to pay as yearly 6. Estoppel 6m 63-Where express warranty is rent. In view of this false representation, denied, buyer may avail himself of implied and of the fact that plaintiff was not warranty. shown to have lost his right to ask for a Where defendant denies an express warrescission of his contract, the court should ranty of an article sold to plaintiff, he cannot

assert that the express warranty, alleged by not have sustained the motion to dismiss the plaintiff and denied, is a bar to a warranty bill as to the Federal Land Company. which the law would imply.

*Rehearing denied March 18, 1925. Certiorari denied 45 S. Ct. 511, 69 L. Ed.

3 F.(20) 12 7. Appeal and error 173(1)-Defense not minute. Plaintiff claims that at the time he presented to trial court cannot be considered purchased said fuse he explained his needs by appellate court.

and requirements to defendant, and that deA defense not made on the trial, nor in any way presented to the trial court, cannot be fendant was fully advised of the purposes raised for the first time in the appellate court. for which the fuse was to be used. He pur8. Trial 251(8)—Instruction held properly to him. This fuse had been manufactured

chased 4,000 feet of fuse, which was shipped refused as not applicable to the issues.

In an action to recover damages caused by by the Ensign-Bickford Company of Simsa premature explosion of dynamite, alleged to bury, Conn. Plaintiff used the same in his have resulted from a breach of warranty of the work of blowing stumps from the right of burning speed of the fuse sold by defendant to plaintiff, where it was alleged as a defense that way of the highway, and claims that in the the explosion resulted from a different cause

belief that it was a slow burning fuse of through plaintiff's negligence, which defense was the kind he had ordered from the defendant fully submitted to the jury, a requested instruc- he put in a charge of dynamite for the purtion on the subject of contributory negligence held properly refused as not applicable to the pose of blasting out a stump in the right of issues.

way, and connected with said dynamite a

cap and piece of said fuse about 20 inches In Error to the District Court of the in length, and in the usual and proper manUnited States for the Western District of would have time to gain a place of safety

ner set fire to the same in the belief that he Arkansas; Frank A. Youmans, Judge.

before the explosion of the dynamite. PlainAction at law by J. F. Rich against the tiff claims, however, that said fuse, instead Hercules Powder Company. Judgment for of burning 1 foot to each minute, burned plaintiff, and defendant brings error. Af- instantaneously, and caused the dynamite to firmed.

explode before plaintiff had an opportunity E. Howard Morphy, of St. Paul, Minn., to reach a place of safety; that this resulted and William R. Robertson, of Joplin, Mo. in serious injury to plaintiff, permanently (Gould G. Rheuby, of Wilmington, Del., destroying his sight, bruising and laceratand John M. Bradford and Carl w. Cum- ing his head, face, and body, and that he mins, both of St. Paul, Minn., on the brief), was permanently incapacitated for doing for plaintiff in error.

work or labor of any kind. G. 0. Patterson, of Clarksville, Ark., and

Plaintiff bases his right to recover upon R. W. Robins, of Conway, Ark. (Patterson the alleged fact that the fuse sent him was & Ragon, of Clarksville, Ark., and J. H. not the kind ordered by him and agreed by Thompson, of Little Rock, Ark., on the plaintiff's agent to be sent. Defendant, in brief), for defendant in error.

addition to denying the claims of plaintiff Before STONE and KENYON, Circuit fered by plaintiff were directly contributed

as to warranty, alleges that the injuries sufJudges, and KENNEDY, District Judge.

to by his own recklessness and negligence in

the manner and method of using the mateKENYON, Circuit Judge. Parties will rial employed in and about the work. The be designated as in the trial court. Defend- court required plaintiff to elect whether he ant is a corporation organized under the would rely upon the cause of action pleaded laws of the state of Delaware, and engaged arising out of a tort, or the one alleging in selling powder, 'dynamite, explosives, breach of warranty. Election was made to and fuses to be used in exploding blasts. In rely upon breach of warranty. 1920 it had a branch office in Little Rock, At the close of plaintiff's testimony deArk., where sales were made. The plaintiff fendant requested the court to direct a verin 1920 was a subcontractor, engaged in the dict in favor of the defendant, which moconstruction of a highway in Faulkner coun- tion was denied. At the close of all the testy, Ark., and in the prosecution of said timony defendant moved the court to direct work used dynamite for the purpose of the jury to return a verdict in its favor, blowing stumps from the right of way of the which was likewise denied. At the proper prospective highway. In the month of Au- time defendant requested certain instrucgust, 1920, he purchased from defendant at tions which appear in the record, which were its office in Little Rock, Ark., certain fuses refused, and exceptions to the action of the for the purpose of exploding dynamite, and court in refusing the same were preserved. claims that one Bailey in charge of said of- The jury returned a verdict for plaintiff for fice at Little Rock sold him a fuse which he $30,000. guaranteed to be a slow burning safety fuse The questions actually involved arise from with a burning speed not to exceed 1 foot per the refusal of the court to charge the jury

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