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that, when he went to consult Mr. Pentz, companied him were suficient to inform the Marymont went with him and said some- officers of the bank that the transaction was thing to Mr. Pentz, which he (Lyons) did out of the usual course of business. not hear, and that Mr. Pentz thereupon We find nothing in the cases cited by the told him to accept the checks and surrender plaintiff in error, such as Studley v. Boylsthe notes. Redmond testified that Simon ton National Bank, 229 U. S. 523, 33 S. Ct. came in with Marymont and presented a 806, 57 L. Ed. 1313, to sustain its concheck for the payment of the principal of tention that the right of set-off exists unthe notes, and later & check for the interest, der the facts presented in the present and that Marymont seemed impatient for

Those cases go no farther than the delivery of the notes. “I explained that to hold that the Bankruptcy Law recogI would give them to him in a few sec- nizes the right of set-off of mutual aconds; something to that effect. I sent one counts between a bank and a depositor, and of the boys around to look up the balance does not deprive the bank of the rights of of the account, and he was gone some time. any other creditor taking money without This gentleman got a little more impatient, reasonable cause to believe that a preferand he said, 'I want the notes; I want the ence will result. But here there were no munotes; you do what I tell you.' And in the tual accounts. There was but a payment meantime this party came back that looked of a note to the bank, under circumstances up the balance, and reported that there was which, if the bank had knowledge of a credit sufficient to pay for the balance of the bankrupts' insolvency, made the paythe notes, and he also reported that there ment preferential. Traders' Bank v. Campwas a check on Oakland for $6,000, and un- bell, 14 Wall. 87, 97, 20 L. Ed. 832; In re der the conditions I could not surrender the National Lumber Co., 212 F. 928, 129 C. C. notes, because the deposit was made up of A. 448; In re Fairburn Oil & Fertilizer Co. uncollected checks; so I referred him to Mr. (D. C.) 240 F. 835; First Nat. Bank v. Lyons, the head of the department, and he Harper, 254 F. 641, 166 C. C. A. 139; Merwent to Mr. Pentz. Q. Do you remember rimack Nat. Bank v. Bailey (C. C. A.) 289 this gentlemen telling you-the gentleman F. 468. who was with Redmond-to take the checks The evidence that the bank knew on and say nothing about it? A. I do not re- March 5, 1923, that the bankrupts were inmember that last part of it, 'say nothing solvent is circumstantial and somewhat meaabout it.' He said, 'Take it, take it.'." ger. There is testimony that in 1922 there

It was further shown that the checks so were frequent conferences between the bank presented were not sufficient in amount to and the bankrupts concerning the latter's meet the principal and interest on the notes, financial condition. But at that time the and that the deficiency was $205.

bankrupts were not insolvent. There is no The evidence does not justify the conclu- evidence that they were insolvent prior to sion as a matter of law that the deposit of June, 1922. On December 31, 1922, their the checks was a bank deposit in the usual books showed a deficit of $58,000. By Febtourse of business. There was evidence to ruary 28, 1923, their assets had shrunk to indicate that the bank itself did not so re- $5,494, consisting of fixtures and broken gard it, and that uncollected checks were not parts of stock. At that time the bankrupts considered as cash on which a note of the owed about $82,000 to about 100 creditors. bank might be surrendered. The bankrupts' The trial court, in charging the jury, business had ceased in December, 1922. said: "A creditor has reasonable cause to Bert Simon had left the firm and had gone believe a debtor insolvent when such a state to work elsewhere. The firm was making no of facts is brought to the creditor's notice substantial deposits with the bank. None respecting the affairs and pecuniary condiwas made in the month of March, 1923, pri- tion of the debtor as will lead a prudent or to March 5. The deposit of checks on business person-a prudent banker in this that date was obviously made for the pur- caseto conclude that the debtor is insolpose of paying the bankrupts' notes to the vent.

And when you come to ask bank. It was in effect a transfer of the wbat a reasonably prudent and intelligent checks for that purpose.

It was parting person ought to have known under the cirwith so much of the bankrupts' assets to cumstances, you take into consideration an pay one of their debts, and it operated to average prudent banker. They have special diminish by that much the bankrupts' estate. training, special knowledge, and perhaps The circumstances under which the deposit would have a little more understanding of was made, the actions of one of the bank- the inferences to be drawn from the cirrupts, and the words of the man who ac- cumstances of debtors than a mere ordinary

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8 F.(20) 5 layman, who has no knowledge of the busi- 2. Shipping Om 142–Carrier, answering claim ness of banking.” No exception was taken

on merits, without setting up defense that

claim was barred by limitation in contract, to the instruction.

waives such defense. The evidence that the bank had actual

Where carrier answers written claim, renotice of facts from which insolvency was

ceived after expiration of time limited in coninferable consists in what was said and done tract, on merits, and makes no defense on at the bank on March 5, 1923. One of the ground of delay in presenting claim, it expressbankrupts deposited with the bank four

es intention to waive such defense. checks drawn on other banks, the total amount of which, together with the $5.74, Appeal from the District Court of the the balance then on deposit to the credit of United States for the Third Division of the the bankrupts, was insufficient by $205 to Northern District of California; George M. meet the payment of the notes and interest. Bourquin, Judge. He then presented at the note window a

Suit by Wm. D. Oelbermann and others, check already drawn for the payment of the copartners doing business under the firm principal of the notes, and, on learning

name of Wm. D. Oelbermann & Co., against the amount of the interest due, drew and the Toyo Kisen Kabushiki Kaisha, a corpresented a second check for that amount. poration. Decree for defendant, and plainThe bank had no knowledge that the checks tiffs appeal. Reversed and remanded. which were thus deposited with it were collectable. It took no steps to ascertain wheth

The appellants were the consignees of a er they were good, or would ever be paid. shipment of wool, which originated at TientTo regard such a deposit as a cash deposit, sin, China, was carried by the appellee's and on the strength thereof to surrender its steamship Siberia Maru from Dairen, Conotes, was out of the usual course of the rea, to San Francisco, Cal., and thence by bank's business.

the Luckenbach steamer Andrea Luckenbach The evidence of what occurred was suffi- to Philadelphia. The earrier arrived at cient to justify the jury in believing that Philadelphia on March 21, 1923. On April the bank's action in so doing without fur- 4, 1923, the appellants filed with the Luckther inquiry was the direct result of the enbach Steamship Company their claim for earnest insistence of the man who accom- damages to the cargo. On June 6, 1923, the panied the bankrupt, and who had been the claim was rejected by that company on the maker or the payee of the checks so deposit- ground that the damage occurred prior to ed, when in an excited manner and with a delivery to its vessel. On September 19, gesture he said to the clerks, “You take it; 1923, the Luckenbach Steamship Company, you take it; don't say anything, but take on behalf of the appellants, presented to it.” We cannot say as a conclusion of law the appellee a written claim for the damthat the jury were not justified in believing ages. The claim was rejected by the appelthat the words and manner of the speaker lee in its letter of September 29, 1923, which meant that the bankrupts were insolvent, stated as ground for rejection that the apand that the bank's only chance to get pay- pellee had exercised due diligence to make ment of its notes was to accept the checks its vessel seaworthy and was relieved from at their face value and apply the same in liability by the provisions of the Harter payment, and that under the circumstances

Act. bank officers of ordinary prudence could not No objection was made on the ground that have failed to have reasonable cause to be- the claim was not presented in due time. lieve that the payment so received by the The libel was filed on November 16, 1923. bank was a preference.

In its answer to the libel the appellee pleadThe judgment is affirmed.

ed the terms of the bill of lading, wherein

it was provided that all claims of shipper art den 2,68

or consignee for loss or damage to cargo 5

should be presented in writing within 60 OELBERMANN et al. v. TOYO KISEN KA. days from the date of notice of such loss BUSHIKI KAISHA."

or damage, “and, if any such claim be not (Circuit Court of Appeals, Ninth Circuit. so presented within said 60 days, such claim January 5, 1925.)

shall be, and by every court be held to have No. 4257.

been, released by shipper and to be aban

doned and barred.” The court below, on the 1. Estoppel em 52-To constitute waiver there must be intention to relinquish known right. pleadings and the testimony, held that the

To constitute waiver there must be inten- appellee was responsible for the loss and tion to relinquish known right.

damage, but that the failure of the appel*Certiorari denied 45 S. Ct. 511, 69 L. Ed. —-.

lants to present their claim within the time trine of waiver, the federal courts have adlimit barred their cause of actions, and dis- hered to a stricter rule, and cites Lehigh missed the libel.

Valley R. Co. v. Providence-Washington Ins. McClanahan & Derby, S. Hasket Derby, Co., 172 F. 364, 97 C. C. A. 62, where it and Carroll Single, all of San Francisco,

was said: “A waiver is the intentional reCal., for appellants.

linquishment of a known right.” In that F. Eldred Boland and Knight, Boland,

case the court said that "the fact that the Hutchinson & Christin, all of San Fran respondent insisted upon other defenses did cisco, Cal., for appellee.

not amount to a. waiver of this defense.”

But, so far as the records of that case and Before GILBERT, HUNT, and RUD- of the case from which it was taken on writ KIN, Circuit Judges.

of error inform us, there was no "other de

fense" insisted upon, except that the reGILBERT, Circuit Judge (after stating spondent had promised to bear a part of the the facts as above). The text-books are in expense of litigation, which, said the court, accord in stating the rule that a condition "is entirely insufficient to establish such a in a contract of carriage requiring that no- waiver.” tice of claim of damages be presented with- [1,2] We agree that to constitute waiver in a stated time may be waived by the car- there must be an intention to relinquish & rier, either expressly or by conduct incon- known right. That intention may be evisistent with an intention to rely upon it, denced by expressed words, by acts, or by and that where a claim is presented after a course of conduct, and we may accept it the time so limited, and payment is refused as settled that, in view of the well-known for reasons not involving the promptness of rule of law that if a carrier receives a claim the notice, but on entirely different grounds, of damages after the expiration of the time there is a waiver. 1 Hutchinson on Carriers limited in the contract, and considers the (3d Ed.) p. 473; 4 R. C. L. 799; 10 C. J. items thereof, and makes its answer thereto 342.

on the merits, and makes no claim of defense In the text last cited the rule is thus stat- on account of the delay in presenting the ed: “Where waivers are not prohibited, the same, it gives the claimant the right to unrejection of a claim on grounds other than derstand that its intention is to waive that noncompliance or an insufficient compliance defense. with a contractual requirement that notice The appellee cites, also, Southern Pac. of claim for loss or injury shall be given the Co. v. Stewart, 248 U. S. 446, 39 S. Ct. 139, carrier, operates as a waiver of the con- 63 L. Ed. 350. In that case no written claim tractual requirement. In other words, where for loss or damages was given by the shipthe carrier states a specific ground of ob- per as required by the contract. The facts jection, any other objection which it could relied upon to show waiver were that the have made is waived." The text is in ac- defendant had, at the time when the damages cord with the decided weight of authority. were sustained, actual knowledge of all of Naumen v. Great Northern Ry. Co., 131 the items thereof, and on many occasions Minn. 217, 154 N. W. 1076; Banks v. Penn- had recognized the plaintiff's right to recovsylvania R. Co., 111 Minn. 48, 126 N. W. er on account thereof, and had negotiated 410; Wallace v. Lake Shore, etc., R. Co., 133 with the plaintiff for settlement. Those cirMich. 633, 95 N. W. 750; Hull v. Railroad, cumstances, the Supreme Court ruled, were 193 Mo. App. 425, 185 S. W. 1155; Hudson inadequate to show a waiver by the carrier & Co. v. N. P. Ry. Co., 92 Iowa, 231, 60 N. of the written notice required by the conW. 608, 54 Am. St. Rep. 550; Cleveland, tract. While in so holding the court reetc., R. Co. v. Rudy, 173 Ind. 181, 89 N. E. jected the prevailing rule of the state courts, 951; M. & N. Trans. Co. v. Eichberg, 109 as illustrated in Reynolds v. Express Co., Md. 211, 71 A. 993, 130 Am. St. Rep. 524; 172 N. C. 487, 90 S. E. 510, Ann. Cas. Produce Exchange v. N. Y. P. & N. R. R., 1918C, 1071; St. Loạis Southwestern R. Co. 122 Md. 231, 89 A. 437; Isham v. Erie R. v. Grayson, 89 Ark. 154, 115 S. W. 933, Co., 112 App. Div. 612, 98 N. Y. S. 609, and Southern Express Co. v. Stevenson, 89 affirmed 191 N. Y. 547, 85 N. E. 1111; Fruit Miss. 233, 42 So. 670, we find in the opinCo. v. P., C., C. & St. L. Ry. Co., 43 Pa. ion nothing to indicate disapproval of the Super. Ct. 481.; Post v. Atlantic Coast Line well-established rule that if a demand in R. Co., 138 Ga. 763, 76 S. E. 45.

writing is presented, and the carrier reThe appellee contends that, while the state ceives and answers it, and sets forth its decourts have often frittered away the con- fense thereto on the merits, and makes no tract rights of persons by invoking the doc- reference to the defense that the action is 8 F.(20) 7 barred, it expresses its intention to waive below was Everett 0. Fisk & Co., a Masthe latter defense.

sachusetts corporation, claiming a priority The decree is reversed, and the cause is to the use of the trade-name, “Fisk Teachers' remanded to the court below to assess the Agency." The defendants were M. E. appellants' damages.

Shuck and his wife and a corporation of
Colorado, organized by Mr. Shuck under
the name of “The Fisk Teachers' Agency,
Inc.

From the pleadings and the evidence it EVERETT O. FISK & co., Inc., V. FISK appeared that Everett 0. Fisk in 1884 es

TEACHERS' AGENCY, Inc., et al. tablished at Boston, Mass., what was called (Circuit Court of Appeals, Eighth Circuit. De- the Boston Teachers' Agency. The general cember 17, 1924.)

object of the business was finding positions

for teachers and teachers for positions. A No. 6652.

few years later Mr. Fisk associated Mr. 1. Trade-marks and trade-names m33— William B. Herrick with him as a partner Trade-name cannot be ssigned, except as incident to sale of business.

in the business, under the former firm name. A trade-Dame cannot be assigned, except as

This name was changed in 1890 to that of an incident to the sale of the business and good the "Boston, New York & Los Angeles will in connection with which it has been used. Teachers' Agency," and in 1891 to “Boston, 2. Trade-marks and trade-names on 32—Right New York, Chicago, Chattanooga, Portland,

to exclusive use of trade-name held lost by and Los Angeles Teachers' Agency.” In permitting its use by others.

1892 the firm name was changed to "Fisk Complainant for many years has conducted Teachers' Agency," and in 1893 the firm a business in Boston under the trade-Dame "Fisk Teachers' Agency.” It has also, through transferred its business to an incorporation 80-called licenses, authorized the use of such under the laws of Maine by the name of name by local agencies established in many “Everett 0. Fisk & Co., Incorporated.” In other cities, which it does not own, and with 1917 this corporation transferred the busiwhich it has no connection, except through such licenses and contracts under which they co

ness to the plaintiff, a corporation of Masoperate with each other and are listed in com

sachusetts, known as “Everett 0. Fisk & plainant's advertisements, for which they pay Co." Mr. Fisk has been associated with all a percentage of receipts. Through such ar

of these firms and corporations and has rangement the trade-name has lost its distinc; had the chief financial interest in them. The tiveness as the trade-name of complainant, and has come to be associated by patrons and the

name "Fisk Teachers' Agency" has been public with the several local agencies with used by the plaintiff and its predecessors as which they deal. Held, that by permitting its & trade-name since 1893. use for so long a time by others, for a monetary consideration, complainant lost the right

For many years the plaintiff has had conto protection in its exclusive use as its own

tracts with individuals in pursuance of trade-name.

which these persons have conducted a busi

ness similar to that of the plaintiff, at vaAppeal from the District Court of the rious cities in the United States, such as New United States for the District of Colorado; York, Syracuse, Philadelphia, Pittsburgh, John Foster Symes, Judge.

Birmingham, Memphis, Chicago, Kansas Suit in equity by Everett O. Fisk & Co., City, Denver, Portland, Oregon, Berkeley, Inc., against the Fisk Teachers' Agency, Cal., and Los Angeles, under the name Inc., and others. Decree for defendants, "Fisk Teachers' Agency.” In general, by and complainant appeals. Affirmed.

these contracts the plaintiff has given the

right to use the trade-name "Fisk Teachers' Ralph W. McCrillis, of Denver, Colo., for Agency," agreed to furnish office stationappellant. Horace N. Hawkins, of Denver, Colo. (B. for registration of teachers and positions,

ery, advertising circulars, and blank forms F. Reed and Robert W. Steele, Jr., both of and to include the name of the local office Denver, Colo., on the brief), for appellees. in the general advertising sent out by plain

Before LEWIS, Circuit Judge, and tiff. In return the persons conducting the MUNGER and MILLER, District Judges. local offices have agreed to pay to plaintiff

a share of the gross proceeds of the busiMUNGER, District Judge. This suit was ness, and to be subject to the plaintiff's dibrought to enjoin the use of a corporate rections as to relationship with "other Fisk name, the plaintiff claiming it to be its Agencies.” The local offices own whatever trade-name. The bill was dismissed, and property is used in the business, and have the plaintiff has appealed. The plaintiff complete control over the conduct of the business, except as the contract limits it. Mr. Shuck refused to be longer bound by The method of operating, as it has been es- the contract, and with his wife and a relatablished under these contracts and with the tive organized the defendant corporation at approval of the plaintiff, is about as fol- Denver, under the laws of Colorado by the lows:

name "The Fisk Teachers' Agency, Inc.” The person holding the local office makes Since that time the corporation has conpersonal solicitation of officers of education- ducted a business of finding and filling posial institutions for the privilege of furnish- tions for teachers, in a manner similar to ing applications of teachers for positions to that of the plaintiff and the local offices be filled, and solicits teachers to make ap- which have been mentioned. plication through the local office for such [1] The foundation of the plaintiff's positions as they desire to fill. Advertising claim is that the name "Fisk Teachers' is also made of the nature of the service Agency” is its trade-name, by which its sought to be rendered. There seems to be services are advertised and known.

It an understanding that the local office is to claims, also, that it has operated throughout limit its main efforts to the territory that is the United States under this trade-name by nearer to that office than to the other of- means of licensed agencies, each known as fices, but each office, whether of the plaintiff "Fisk Teachers' Agency.” The proofs esat Boston, or any of the others, may seek tablish the use of the trade-name by the to fill positions in any school, regardless of plaintiff itself since 1893. The use of the geographical location, especially if the same trade-name by the many local offices teacher or school officer wishes the services which have been mentioned has continued of some particular office. For the services for a great number of years. The plaintiff rendered a fee is charged, mainly based up- was not the proprietor of these local offices, on a percentage of the annual salary of a and the managers of them were not the teacher who has secured a position as a agents of the plaintiff. They were owned result of the efforts of the plaintiff or of and managed by those having them in the other local offices.

charge, who alone were responsible for their The plaintiff has been a liberal advertis- conduct, except for the contractual obligaer, especially in educational journals and tions to the plaintiff. The plaintiff did not in pamphlets and circulars distributed to undertake to sell its business, or a part school officers and teachers. For many years thereof, when it entered into these conthese advertisements have usually had a tracts for the conduct of these local offices, heading of "The Fisk Teachers' Agencies," if it could be said that it might sell the and often, but not always, followed by the right to conduct them. See Messer v. The words “Everett 0. Fisk & Co., Proprie- Fadettes, 168 Mass. 140, 142, 46 N. E. 407, tors," and then followed by a list of the 37 L. R. A. 721, 60 Am. St. Rep. 371. The street addresses in the various cities of the plaintiff's attempted license of the right to local offices. The stationery and circulars use its trade-name was ineffective, because furnished to the local offices, or used by & trade-name cannot be assigned, except as the plaintiff, usually have had a list of all an incident to the sale of the business and the offices printed as a part of the head- good. will in connection with which it has ings. One of the local offices established been used. Kidd v. Johnson, 100 U. S. 617, by the plaintiff was at Denver, Colo., in 620, 25 L. Ed. 769; United Drug Co. v. 1897. Mr. Ripenburg conducted this office Rectanus Co., 248 U. S. 90, 97, 39 S. Ct. until 1914, when he made a contract for 48, 63 L. Ed. 141; Hanover Milling Co. v. the sale of the business to the defendant Metcalf, 240 U. S. 403, 414, 36 S. Ct. 357, M. E. Shuck, and a contract was made be- 60'L. Ed. 713; Macmahan Pharmacal Co. v. tween the plaintiff and Mr. Shuck, similar Denver Chemical Co., 113 F. 468, 475, 51 to the contracts as to local offices which C. C. A. 302; Independent Baking Powder has been mentioned. Mr. Shuck was given Co. v. Boorman (C. C.) 175 F. 448, 451 ; the entire control of the office as far as local Spiegel v. Zuckerman (C. C.) 175 F. 978, matters were concerned, but was made sub- 984; Lea v. New Home Sewing Mach. Co. ject to the plaintiff as to his relations with (C. C.) 139 F. 732, 733; Bulte v. Iglehart "other Fisk Agencies." The contract was Bros., 137 F. 492, 498, 70 C. C. A. 76; Dietz made for a period of 8 years and provided v. Horton Mfg. Co., 170 F. 865, 871, 96 C. that Mrs. M. E. Shuck should inherit Mr. C. A. 41; Rodseth v. Northwestern Marble Shuck's right, if he became incapacitated Works, 129 Minn. 472, 476, 152 N. W. 885, from continuing the work. Mr. Shuck Ann. Cas. 1917A, 257; Falk v. American agreed to pay to the plaintiff 20 per cent. West Indies Trading Co., 180 N. Y. 445, of the cash receipts. In September, 1921, 450, 73 N. E. 239, 1 L. R. A. (N. S.) 704,

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