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8 F.(20) 415 Fords;" "Manufactured expressly for use ing the sense in which the words used would in the Ford engine by Myles-Standish Man- naturally be interpreted—the sense in which ufacturing Company, Nebraska, U. S. A.;" they were expected to be interpreted. on one end, "For Fords;" on the other end, “When we find as a fact, from the other "12-inch standard.” The marks on the conduct of the defendant, that the underlysides of one of the Standish core cartons ing intent is to perpetrate a fraud upon the were, respectively, “Standard Spark Plug consumer, this intent must color the acCore for Fords,” accompanied by a repre- companying acts, and some which otherwise sentation of the core; this was repeated on might be innocent become guilty." Cocoa second side; on the third side a cut of Cola Co. v. Gay-Ola Co. (C. C. A. 6). 200 the core; and on the fourth the same state- F. 720, 723, 119 C. C. A. 164, 167. ment of manufacturing origin as in the case We scarcely need say that, if the cartons of the plug cartons described; on each of are otherwise calculated to create the imthe ends of this core carton were the words pression that defendant's plugs and cores "Ford core.” While none of these cartons are Ford factory equipment, the use of dewere of the identical color used by plain- fendant's name thereon cuts little figure, so tiff (red), and while some were of an en- far as concerns the Ford owner, whose origtirely different color, the two described were inal plug and core came installed in the of an orange color.

car and not in cartons, and who may well On their face these acts would seem-on not have known the actual name of the familiar principles—plainly to spell unfair plug, much less than that of the manufaccompetition, for we cannot accept defend- turer, which, so far as shown by the record, ant's contention that the word "standard,” was not given in the Ford manual. as used on these cartons, is merely descrip- [4] We are not impressed by the objective, and so does not mean standard or fac- tion of lack of evidence that any one has tory Ford equipment. It is true that a been misled by defendant's acts. The prione-half inch thread is a standard size mary purpose of evidence of actual decepthread, and that "standard” is also some tion is to show tendency or likelihood to detimes used to indicate the more common ceive. That office is, we think, performed short plug, as distinguished from a long or by the evidence of the furnishing to plainextension plug, which carries the electrode tiff's representatives, at numerous sales lower down into the engine cylinder, and it places in different cities (including 10-cent may be that, if such words as "one-half stores) of defendant's plugs or cores in reinch standard spark plugs for Fords” stood sponse to requests for the Champion X alone, the charge of piracy might fail. But plug or core, or a standard Ford plug or those words do not stand alone, and we can- core frequently with express assurance on not escape the conviction that the legends the part of the seller of the genuineness of “spark plugs for Ford," "for Fords," the article so sold. The fact that the pur"standard spark plug core for Fords,” were chaser under such circumstances was not calculated to and naturally did give the un- deceived has no tendency to indicate that derstanding that the plugs and cores were such would not have been the effect upon factory equipment. The record shows that the ordinary and casual buyer, who is to be the words “Standard equipped” and “Stand- reckoned with. Samson Cordage Works v. ard equipment” were used in advertisements Puritan Cordage Mills (C. C. A. 6) 211 F. by manufacturers of snubbers, gears, trans- 603, 610, 128 C. C. A. 203, L. R. A. 1915E, missions, lighting systems, reverse gears, 1107. Indeed, the manufacturer of a counand other things to indicate factory equip- terfeit article will be enjoined from selling ment. We think this would be the natural it even though his immediate purchaser be interpretation.

not deceived, if the sale be made with the [3] Defendant insists that its intention is expectation that it was to be used by the not material. True, if defendant had the dealers to deceive consumers. Coco-Cola - right to do what it actually did, its evil Co. v. Gay Ola Co., supra, pages 720, 723. motive would not create an action against Nor do we think the charge of unfair it, and, if it had not such right, a good in- competition affected by the fact that since tention would not excuse. Globe-Wernicke about January, 1922—and thus since the inCo. v Macey Co. (C. C. A. 6) 119 F. 696, stitution of the instant suit-plaintiff has 704, 56 C. C. A. 304. But it does not fol- supplied as factory equipment, for both low that a deliberate intention to pirate Ford cars and Ford tractors, an extension may not be taken into account in determin- plug called "Champion Ford," instead of "Champion X,and which plug, except as No doubt the immense quantities of plugs to length, is the same plug as "Champion which plaintiff has been able to supply as X.” 6 Not only is the original or short factory equipment has enabled it to manulength Champion X still standard factory facture and market at much less cost than equipment for cars built before the exten- it otherwise could. The furnishing of facsion form was adopted, but the name Cham- tory equipment at less than cost seems to pion X is still used on Champion plugs sold present a not unfair analogy to cost of adby plaintiff to others than Ford, whether vertising. short form or long form; both forms being The Circuit Court of Appeals, of the advertised as standard Ford equipment. Eighth Circuit made no reference to this de

[5] Nor do we think it important that fense. In our opinion the decisions in the during a portion of the year 1921 the Ford gasoline and acetylene tank cases furnish Company bought from the Bethlehem Com- some degree of analogy. 'Canfield Oil Co. pany about half a million spark plugs. v. Federal Trade Commission (C. C. A. 6) The Champion plug made by plaintiff did 274 F. 571; Auto Acetylene Light Co. v. not thereby cease to be standard Ford Prest-O-Lite Co. (C. C. A. 6) 264 F. 810; equipment. Not only has it apparently Id. (C. C. A.) 276 F. 537; Standard Oil ever since been exclusively such standard Co. v. Federal Trade Commission (C. C. A. equipment, but even during 1921 plaintiff 3) 282 F. 81. Apart from the effect of the furnished the Ford Company therefor about provisos in the second section of the Clay. 2,500,000 Champion X plugs. We see no ton Act, and whether or not a violation occasion to interfere with the provision for thereof would defeat action for unfair comaccounting as to both profits and damages. petition, we think the Act does not apply Such would be the normal order. I. T. S. here. Rubber Co. v. Tee Pee Rubber Co. (C. C. The decree of the District Court in No. A. 6) 288 F. 794, 798. And it is by no 4065 is accordingly affirmed, with costs. means clear that plaintiff may not prove entitled to substantial recovery. Lack of

The Supplemental Record. proof thus far that sales have been made to

In No. 4070 Judge Westenhaver did not purchasers who thought they were buying

pass upon the question whether or not the plaintiff's goods is not conclusive against

against sale of cores like Defendant's Exhibit X, recovery, especially in view of what we

without inclosing cartons, would violate the have already said on that subject.

injunction against unfair competition, but [6,7] Defendant contends, however, that

made the order denying injunction with perplaintiff comes into equity with unclean

mission to plaintiff, at its option, to instihands, in that its sales of plugs for factory

tute supplemental proceedings for unfair equipment at less than cost—to be compen

1 competition, if defendant should sell such sated for by increased prices for replace

plug cores without inclosing cartons. ments-violates the Clayton Act (38 Stat.

We are disposed to think such sales not 730, Act Oct. 15, 1914, c. 323, § 2 (Comp.

unfair competition, in view of the fact that St. § 8835b]). That act-rightly interpret

defendant is at liberty to make cores like ed-forbids discrimination in price between

plaintiff's, so long as nothing is done to purchasers only where the effect may be un

palm them off as plaintiff's manufacture, or reasonably to lessen competition or tend to

as standard Ford factory equipment, in concreate a monopoly, which we think is not

nection with a presumption that an owner's shown to be the case here. The price of the car to the original purchasers is pre

familiarity with the appearance of the plug sumably lessened by the low prices paid for

and core, as installed in his car, especially factory equipment. The replacement price

after even a comparatively brief period of is not necessarily thereby increased above use

use has stained the core, would scarcely make the normal from the mere fact that the loss incurred in providing factory equipment ta

tained in a carton, and with no marks dimust be overcome by replacement prices.

rectly suggesting plaintiff's structure, or The field is open to all fair competitors. merely because it fits the plug.

We also think injunction was properly 5 The form of the porcelain of the extension denied against the use of the carton containplug is the same as that of the earlier short

ing the distinct disavowal of plaintiff's plug, except that it has two circumferential ribs near its upper end and is marked "Cham- manufacture and of its being supplied as pion Ford," instead of "Champion X."

Ford factory equipment. The order in No.

8 F.(20) 421 4070 is affirmed; costs of this court to be way, formerly called the Merrimack Valley divided.

Highway, by reason of a dangerous emIn No. 4071 the order of the District bankment and defective railing, and that the Court is also affirmed, with costs of this defect and insufficiency in the highway were court. We think it governed by the consid- due to negligence in its construction and erations already discussed in the main case. maintenance. It is conceded that there was

evidence sufficient to warrant a verdict for the plaintiff, unless the defendant was relieved from liability for defects in the high

way by chapter 77 of the Laws of N. H. COEN v. TOWN OF BOSCAWEN.

1921. (Circuit Court of Appeals, First Circuit. Jan- Chapter 48 of the Laws of N. H. 1915, uary 21, 1925.)

under which this action is brought, is an No. 1804.

amendment of section 1, chapter 59, Laws

of N. H. 1893, and as far as material to Highways m 198-Under laws of New Hamp

this case reads as follows: shire, town held liable for injuries on highway maintained partly by state aid and part

"Section 1. Towns are liable for damages ly by town.

happening to any person, his team or car-. Under Laws N. H. 1915, c. 48, 88 1, 2, riage, traveling upon a bridge, culvert, or town is liable for injuries on trunk line highway sluiceway, or dangerous embankments and maintained in part by state and in part by

defective railings, upon any highway which town through which it passes, in view of Laws N. H. 1909, c. 155, § 5, Laws 1911, c. 192, Laws

the town has the duty of maintaining, by 1913, c. 119, and Laws 1921, c. 33, § 1, and its reason of any obstruction, defect, insuffiliability was not affected by chapter 77. ciency, or want of repair of such bridge,

culvert, or sluiceway, or aangerous embankIn Error to the District Court of the ments and defective railings, which renders United States for the District of New it unsuitable for the travel thereon. • • • Hampshire; George F. Morris, Judge. "Sec. 2. Towns shall not be liable for

Action by Ethel A. Coen, administratrix, such damages happening upon state roads against the Town of Boscawen. Judgment

within their borders, nor upon highways for defendant, and plaintiff brings error.

within their borders which are constructed Judgment vacated. verdict set aside. and or repaired in whole or in part by the state case remanded for new trial.

or by state aid, while such construction is in

process or repairs being made, nor for thirRobert W. Upton, of Concord, N. H.

ty days after the construction or repairs (John M. Stark, of Concord, N. H., and

are completed, but shall thereafter be liable Doyle & Doyle, of Nashua, N. H., on the as nr

as provided in section 1 of this act: brief), for plaintiff in error.

"Sec. 3. All acts and parts of acts inconA. W. Levensaler, of Concord, N. H.

sistent with this act are hereby repealed.” (Nathaniel E. Martin, of Concord, N. H.,

The accident in question occurred on Auand Willis G. Buxton, of Penacook, N. H.,

gust 18, 1922, and it is conceded that the on the brief), for defendant in error. Daniel Webster Highway, on which it took

Before BINGHAM, JOHNSON, and AN- place, is one of the trunk lines of the state DERSON, Circuit Judges.

(Laws of N. H. 1909, chap. 155, § 5; Laws

of N. H. 1921, chap. 33, § 1), and that unBINGHAM, Circuit Judge. This is an less the defendant is relieved of liability for action brought by the plaintiff, a citizen defects in the highway by chapter 77 of the and resident of Massachusetts, as adminis- Laws of 1921, the case should have been tratrix of the estate of William A. Coen, submitted to the jury. against the town of Boscawen, N. H., to re- Chapter 77, § 1, reads as follows: cover damages for the death of her intes- “All funds for the construction, improvetate. At the close of plaintiff's evidence, a ment and maintenance of trunk lines and verdict was directed for the defendant, and state highways and maintenance of statejudgment having been entered thereon, this aid highways shall be expended under the diwrit of error was prosecuted. The plain- rection of the state highway commissioner tiff's evidence tended to prove that her in- subject to the approval of the Governor testate was killed in Boscawen while travel- and Council. Funds expended in connecing in an automobile, and in the exercise tion with the construction of state-aid highof due care, upon the Daniel Webster High- ways shall be expended in the same man

021
3 FEDERAL REPORTER, 28 SERIES

355

422

ner subject to the same approval, by such DUNCAN V. JOHNSTON & co. et al.' agent or agents as the state highway commissioner and the selectmen of the town in (Circuit Court of Appeals, Sixth Circuit. Jan

uary 6, 1925.) which such work is being done may appoint."

No. 4243. The Daniel Webster Highway is not a state road, or state highway, one wholly 1. Bankruptcy 440Order dismissing peti. maintained by the state, for damages hap

ñ tion for reclamation of property is reviewable

by appeal. pening upon which towns are freed from

An order of the District Court, affirming liability by section 2, chapter 48, Laws N. the action of a referee in dismissing a petition H. 1915. It is a trunk line, and is in fact for reclamation of property from the trustee, a state-aid highway, one maintained in part is reviewable on appeal and not by petition to

revise. by the state and in part by the towns through which it passes, and the Supreme 2. Bankruptcy Om 455-Informal decree disCourt of the state, in construing sections 1 missing petition held appealable; "final do. and 2 of chapter 48, has held that the "evi- cree.” dent purpose of the Legislature in enact

A memorandum opinion of the District

Judge, on review of an order of a referee, · ing these two sections was to make towns

Was which is entered on the record and concludes liable for injuries happening on highways with a dismissal of the petition for review, is supported wholly or in part by the towns, in effect a "final decree" and is appealable. and to exempt them from such liability (Ed. Note. For other definitions, see Words with reference to state roads located within and Phrases, First and Second Series, Final their territorial limits." Kelsea v. Strat

Decree or Judgment.] ford, 79 N. H. 273, 108 A. 298.

3. Bankruptcy Om 140(3)-Depositor of bonds The effect of this holding is that, under with bankrupts held entitled to reclaim other section 1, towns are liable for damages hap

bonds bought with their proceeds. pening to travelers upon highways which

Petitioner deposited Liberty bonds with

bankrupts for safe-keeping, and bankrupts, they have the duty of supporting in whole

without authority, pledged the same with other or in part. At the time this accident oc- securities as collateral security for a debt of curred, and for many years prior thereto, their own. After bankruptcy the pledgee sold every city or town was under the duty of

some of the securities, but turned over to the

trustee Liberty bonds of the same value and providing funds for the maintenance of so

the same series as those of petitioner, and

the sam much of a trunk line as was located within which, while not the identical bonds, were diits boundaries. See section 5, chapter 155, rectly traceable as proceeds of those originally Laws of N. H. 1909; chapter 119, Laws of

deposited. Held, that petitioner was entitled to

reclaim such bonds as against the trustee, but N. H. 1913; chapter 192, Laws of 1911. that the right was subject to the claims of ownThe latter act made it the special duty of a ers of other securities, wrongfully pledged with city or town to maintain the portion of a them and sold, for contribution. trunk line within its boundaries at its expense, and to the satisfaction of the Gov- Appeal from the District Court of the ernor and Council, except so far as it re- United States for the Western District of quired that assistance should be rendered Kentucky; Charles H. Moorman, Judge. by the Governor and Council out of revenue In th

In the Matter of Johnston & Co., bankderived from automobile fees and fines.

rupt; C. W. Johnson, trustee. From a deChapter 77 does not relieve the defendant

cree of the District Court dismissing her town from the duty of providing funds for

petition to reclaim property, Sallie B. Dunthe maintenance of so much of the Webster

can appeals, and also files a petition to reHighway as is within its boundaries. It

vise. Petition to revise dismissed, and desimply designates the public official under

cree reversed and remanded, with directions. whose direction funds raised by the town or provided by the state for its maintenance A. C. Van Winkle, of Louisville, Ky. shall be expended. We think the District (James Garnett, of Louisville, Ky.. on the Court erred in directing a verdict for the brief), for appellant. defendant.

Emile Steinfeld, of Louisville, Ky. (MorThe judgment of the District Court is ris B. Gifford and Isaac L. Steinfeld, both vacated, the verdict is set aside, and the of Louisville, Ky., on the brief), for appelcase is remanded to that court for trial, lees. with costs in this court to the plaintiff in Before DENISON, MACK, and DONAerror.

HUE, Circuit Judges.

3 F.(2d) 422 MACK, Circuit Judge. Appellant had an moreover, directly traceable as the proceeds account with bankrupts, buying and selling of those originally delivered. for cash and not on margin, investment se- It is conceded that if stock certificates incurities. Her account at all times had a sub- stead of bonds were involved, appellant, as stantial credit balance. In May and June, against the trustee representing general 1922, she delivered to bankrupts, for safe- creditors, would be entitled to them, whether keeping until ordered sold, one $1,000 Sec- on the ground of practical identification of ond, and ten $1,000 Fourth, Liberty bonds; fungible articles (Duel v. Hollins, 241 U. the serial numbers were not known. With- S. 523, 36 S. Ct. 615, 60 L. Ed. 1143), or out her knowledge or consent, bankrupts on the analogy of following trust funds. wrongfully pledged them as collateral. On either basis, however, there would be an Pledgees carried $1,000 worth of Second and obligation of contribution in favor of such $10,000 worth of Fourth Liberties together owners if any, of the securities sold out by with other kinds of securities at all times in Post & Flagg after bankruptcy as are in bankrupts' account, but no specific serial appellant's class in relation to the banknumbers or indeed bonds of specific denom- rupt. See Oppenheimer Stockbrokerage inations were allocated to the account. Bankruptcies, 37 Harvard Law Review, 860. Bankrupts did not hold for or owe to any The referee, however, held, and appellees customer other than appellant any Second contend, that bonds are unlike stock certifior Fourth Liberty bonds.

cates; that the former are or are analoPledgee, Post & Flagg, in liquidating the gous to chattels, like automobiles of a given account, sold out some of the other securi- make, model, and year, each with its own ties deposited with them by bankrupts; aft. identity and individuality, although for most er bankruptcy, on settlement of the bank- purposes indistinguishable from one anothrupts' account, one $1,000 Second Liberty er, while the latter are but tokens of an inand one $10,000 Fourth Liberty bond, to- corporeal undivided interest in a corporagether with a cash balance and other securi- tion; that therefore the principles of identifities, were delivered to the receiver and by cation, if not of tracing, are inapplicable; him to appellee-trustee in bankruptcy. and that as the originally deposited bonds

Appellant's petition for the delivery to her are not on hand, there can be no recovery. of these Liberty bonds was denied by the The right to trace, and, even without tracreferee; a petition to revise was dismissed ing, to obtain like stock certificates on hand by the District Judge. Petitioner appeals is not, however, due to their character as from and also petitions to revise this order tokens of a chose in action, but to their interof dismissal. Respondents move to dismiss changeability-their fungible nature. In the petition to revise on the ground that a truth, the serial number of a stock certificate proper order of the District Court would be identifies it exactly as does the serial numreviewable only on appeal, and appellees ber of a bond; in the one as in the other move to dismiss the appeal on the ground this identification may for some purposes that only an opinion but no final order has be vital. Oppenheimer, supra, page 868. been entered.

But in so far as such certificates are [1] 1. The petition to revise this order of agreed or are deemed in law to be fungible, the District Court will be dismissed; the negotiable bonds, at least those of the same cause is properly before us on appeal. Re issue and maturity must likewise be treated National Discount Co. (C. C. A. 6) 272 F. as fungible property; we find no basis for 570.

a differentiation between the two kinds of [2] 2. The decree dismissing the petition securities. In Re Farmers' & Merchants' to revise the referee's order was informal; Bank of Jones (C. C. A. 6) 286 F. 924, neit was in substance a memorandum opinion, gotiable bonds were involved and the record but as it was not merely filed as a paper in in that case, as in the instant case, does not the cause, but entered on the record and show that the bonds on hand were the idenconcludes not with a direction to dismiss but tical ones originally deposited. It follows with a dismissal of the petition to revise, therefore that as between appellant and the it suffices as a final and appealable decree. trustee in bankruptcy the former is entitled Motion to dismiss the appeal is denied to the bonds.

[3] 3. The identical bonds delivered to But inasmuch as at the time of the filing the bankrupt are not on hand; an equivalent of the petition in bankruptcy they were in amount of exactly like character is now in the hands of a bona fide pledgee as collaterthe possession of the trustee, and they are, al, with other securities, for the bankrupts'

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