& Wagnalls Company. From decisions sustaining a petition for cancellation, the latter appeals. Affirmed.

E. V. Myers, of New York City, for appellant.

E. T. Brandenburg, of Washington, D. C., and J. F. Brandenburg and C. J. Heermance, both of New York City, for appel

lee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Jus

tiees.

ROBB, Associate Justice. Appeal from concurrent decisions of the Patent Office tribunals in a trade-mark cancellation proceeding, sustaining the petition for cancel lation of a mark consisting of the words "Topics of the Day," as applied to moving picture films.

Early in 1918, A. E. Siegel, appellee's predecessor, conceived the idea of project ing on moving picture screens current news items, such as are found in the Literary Digest. Thereupon he interviewed Funk & Wagnalls Company, publishers of the Literary Digest and appellants here, explained his ideas, and was referred to the advertising manager, Mr. Dame. As a result, he put his proposition in the form of a letter, under date of April 30, 1918, in part as follows: "Now my proposition is as follows: I would undertake to distribute these slides throughout the United States and England at my own expense, and the cost of manufacturing these slides would also be borne by me; all advertising in the trade papers of our business would also be paid by me, and in each case the name of the Literary Digest would be used, with an aim to spread broadcast your great journal, and also put forth every effort to increase the circulation of the Literary Digest-all at my own expense with relation to this project. In return for this, all that I expect to receive from the Literary Digest or Funk & Wagnalls Company is the material printed in the above-named magazine under "Topics in Brief,' and any other such material that the writer would find advantageous to the Literary Digest of the Screen. Now, Mr. Dame, I believe I have made matters fairly clear as to what my proposition would be. It is at no time necessary for a cash expenditure on your part, only the supplying of the materials mentioned."

Under date of May 6th, Funk & Wagnalls, through Mr. Dame, accepted Mr. Sie

gel's proposition in a letter containing the following: "This is to confirm our conversation regarding the arrangement for your using extracts from the Literary Digest in a screen service for moving picture theaters. We agree to set up in type and furnish proofs on cardboard fifteen selections to be made by you from the 'Topics in Brief' department of the Literary Digest each week, and you are to reproduce these selections on slides under the general heading Topics of the Day Selected from the Press of the World by The Literary Digest.' All expense for advertising and distributing, or any other expenses incurred to the end that the slides will have the widest circulation are to be borne by you, it being understood that the entire cooperation on the part of Funk & Wagnalls Company and the Literary Digest is outlined in the second paragraph above. This arrangement is to continue for six months from date of this letter, and may be continued for such additional period as may mutually be determined upon at the end of six months, provided the publicity results to Funk & Wagnalls Company and the Literary Digest justify such continuation."

It

In February of 1919 the Timely Films, Inc., succeeded to Siegel's interests, and thereafter Funk & Wagnalls recognized the succession. Meanwhile the enterprise reached proportions probably not contemplated by either party at the outset. was not long before appellee, instead of taking all its material from the Literary Digest, maintained a force of editors who prepared the topics program, which was subject before use to the approval of the Funk & Wagnalls Company, that company being unwilling to have its name associated with any material it did not approve. After the appellee company succeeded Mr. Siegel, all films bore the following caption: "Timely Films, Inc.

Presents
Topics of the Day
Selected by

The Literary Digest."

At the time testimony was taken, the cost of the preparation and distribution of these films amounted to approximately $225,000 per year. An examination of the correspondence between the parties, as various extensions of the arrangement were made, indicates very clearly that the object of the Funk & Wagnalls Company, as stated in the original letter to Siegel, was publicity and that alone. To illustrate: In a letter from that company to Siegel, under

"We

date of July 12, 1918, it is said: hope that three years hence the 'Topics' will be a big thing for you, and, if it is, it will, of course, be a good advertising feature for us." Again, on January 4, 1919, the company wrote Siegel: "The results, so far as we have been able to determine, have been quite satisfactory from a publicity standpoint."

Some time prior to October 20, 1920, the Timely Films company sought a longer extension of the existing arrangement between it and the Funk & Wagnalls Company, the latter company being disinclined to agree to an extension unless it received one-third of the stock of Timely Films, Inc. Pending these negotiations the Funk & Wagnalls Company, without the knowledge of Timely Films, Inc., registered the mark in controversy. When this came to the attention of the appellee company, cancellation proceedings were instituted, resulting as already indicated.

[1,2] It is apparent, we think, without extended discussion, that the business in which Mr. Siegel was to embark, when he entered into the original arrangement with the Funk & Wagnalls Company, was to be his business and not that of the company. It was a perfectly natural arrangement. The company was to supply him with certain material, and, in return therefor, was to receive valuable advertising. Its sole obligation, as stated in its original letter to Siegel, was to assist him in the preparation of selections for his use. It exercised no control over his contracts with the moving picture concerns and was in no way responsible therefor. In short, Mr. Siegel was to conduct the business for himself, and not for Funk & Wagnalls, from whom he in effect purchased his supply of information. There was no basis, therefore, for the registration of this mark to the Funk & Wagnalls Company. Whether, as contended by that company, a trade-mark use in connection with a periodical formed a basis for the present registration, we need not determine. But see Atlas Mfg. Co. v. Street, 204 F. 398, 122 C. C. A. 568, 47 L. R. A. (N. S.) 1002. In the Literary Digest of the Funk & Wagnalls Company there is a department under the head of "Topics of the Day" and a further subtitle "Topics in Brief"; but in neither case are the words used in a trade-mark sense. Rather are they used as descriptive of the current items that follow them. In other words, any other periodical would be entitled to the use of such a heading. The

name of the periodical is "The Literary Digest," and there is no justification for saying that any particular subheading constitutes a trade-mark. To illustrate: The first subheading is "Topics of the Day," the second "Foreign Comment," the third "Science and Invention," the fourth "Letters and Art," the fifth "Religion and Social Service," the sixth "Current Poetry," the seventh "Problems of Democracy," and the eighth "Personal Glimpses." If one of these subheadings constituted a trade-mark, then all did.

The decision was right, and is affirmed.
Affirmed.

TAGGART v. SHILSTONE et al.

SAME v. SHILSTONE.

(Court of Appeals of District of Columbia. Submitted November 10, 1924. Decided January 5, 1925.)

Nos. 1667, 1668.

1. Patents 91(4)-Affidavit of senior party in interference proceedings antedating activIty on part of junior parties held disclosure of Invention.

In interference proceedings, senior party's affidavit, antedating activity on part of junior parties, stating that he had discovered that fibrous rice material could be carbonized, so as to produce a carbon and silica mixture having high decolorizing power, particularly suitable for treatment of sugar materials, held disclosure of invention of process of producing decolorizing material by use of rice fiber carbon, though it did not disclose nature of chemicals

used, and though subsequent thereto experimentation was necessary to perfect the process, in view of the prior art.

2. Patents 113(6)—Jurisdiction of Court of Appeals in interference proceedings limited to determination of priority.

The jurisdiction of the Court of Appeals on appeal from decision of Commissioner of Patents in interference proceedings is limited to determination of priority, and does not extend to question of patentability.

Appeal from Assistant Commissioner of Patents.

Interference proceedings between William G. Taggart and Herbert M. Shilstone and another, and between William G. Taggart and Herbert M. Shilstone. From decisions awarding priority to senior party Herbert M. Shilstone in each case, William G. Taggart appeals. Affirmed.

A. J. Decker, of Washington, D. C., for appellant.

T. A. Witherspoon and W. B. Kerkam, both of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice. These are appeals from a decision of the First Assistant Commissioner of Patents, affirming the decision of the Board of Examiners in Chief, and awarding priority to the senior party, Shilstone. The Assistant Commissioner treated these interferences as one case, and we shall do the same.

The invention relates to a decolorizing material intended for the treatment of sugar solutions and the process of producing that material. Count No. 1 in the first interference is sufficiently illustrative and

reads as follows:

"1. The process for producing a carbonaceous material for decolorizing liquids, which consists in partially burning to a charred mass fibrous rice material containing silica, treating the charred material, after cooling, with an alkali under such conditions as will produce a porous mass, and removing the residual alkali from the mass, such charring and treatment with alkali being so conducted as to leave a final product substantially free of resinous substance."

The decisions of the Board and Assistant Commissioner contain a very full and satisfactory analysis of the evidence, and, since we agree with the conclusion reached, we shall do no more in this opinion than direct attention to a single item of evidence.

Prior to July 12, 1916, Shilstone accidentally produced carbon from rice straw and conceived the idea of using this carbon as a decolorizing agency. On the date mentioned he made an affidavit, the authenticity of which is not in doubt, in which he said: "For the past several months I have been experimenting on carbonizing various vegetable matter, with a view of discovering a material which will decolorize sugar solutions and other colored liquids. I desire to go on record at this date as having found that fibrous rice material, whose silica con

tents are high, can be carbonized in a suitable manner, and this product, when treated with various chemicals, or by various chemical means, will produce a carbon and silica mixture which has a very high decolorizing power, and is particularly suitable for the treatment of sugar materials." He then declared his intention to apply for a patent.

[1] This affidavit antedates any activity on the part of Taggart, and we agree with the Assistant Commissioner that it disclosed the invention to one skilled in the art. It is contended by the appellant, however, that the affidavit does not disclose the nature of the chemicals used, and hence may not be said to disclose the issue. On this point the Assistant Commissioner said: "It may be presumed that Shilstone was familiar with the digestion of carbon with an alkali. The history of this case establishes that the prior art disclosed it was old to do this with vegetable fiber carbon to obtain a decolorizing product. The Clacher article, as well as the 'Norit process,' disclosed this much. Shilstone, knowing this, actually regarded the step in advance of the art to consist in the selection of the particular material, or rice fiber carbon. The material was new, but the way to treat it was old, in connection with treatment of other vegetable carbons. The issues of these interferences involve both these features."

With this reasoning we agree. Given the Shilstone carbon, one skilled in the art would have had no difficulty, after reading the Shilstone affidavit, in producing a decolorizing agent. It may be that to perfect it to the point since reached would have required some experimentation, but that does not alter the fact that the invention covered by these counts already had been disclosed.

[2] There was considerable discussion in the Patent Office as to whether an invention had been made. Since our jurisdiction in this proceeding is limited to a determination of priority, we, of course, express no opinion on the question of patentability. The decision in each case is affirmed. Affirmed.

January 6, 1925.)

No. 1797.

I. Brokers 94-Broker without authority to make contract for buyer after informing

him his offer was refused.

Where broker wired its agent, who had obtained a bid for five carloads of hams, that he did not think he could buy them at price offered, and the agent told the offerer that he could not get the cars, any error of agent in construing broker's telegram was the broker's error, the offerer had a right to assume that the negotiations were at an end, and the broker had no authority to buy hams on behalf of the

offerer.

2. Brokers

100-One dealing with broker did so at its peril, in absence of ostensible authority.

One accepting order for hams from a broker did so at its peril as to broker's actual authority to bind the buyer, where there was no reliance on ostensible authority; it knowing nothing of the relation between the broker and the buyer.

3. Brokers 103-Burden to show ratification was with knowledge of facts.

One relying on corporation manager's ratification of broker's unauthorized contract had the burden of showing, not only acts of ratification, but that they were done with full knowledge of all material facts.

4. Brokers 103-Question whether contract was made held for jury.

Under evidence of a custom of the trade for the seller to send direct to the buyer a confirmation of a sale made through brokers, and for the buyer promptly to sign and return it, where, though no contract binding on the buyer had been made by the brokers, the seller in ignorance of that fact sent a confirmation to the buyer, which was not returned or replied to, whether the contract was thereby ratified by the buyer held a question for the jury.

5. Sales 53(1)-Question of ratification of contract held for jury.

The question whether failure to disaffirm a ratification of a contract of sale by the buyer, which, because made under a misapprehension of the facts, was not binding, but which was subsequently acted on by the seller, amounted to a binding ratification, held for the jury.

In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.

ANDERSON, Circuit Judge. The main question in this case is whether the court below was right in ordering a verdict for the defendant, on the ground that there was no evidence warranting the jury in finding

a contract.

The suit was brought to recover damages for breach of an alleged contract for the sale of five carloads of hams by the plaintiff to the defendant in June, 1922. The breach declared upon is a refusal (admitted) to accept and pay for four of the five carloads. The facts of controlling importance are rather unusually complicated, by reason of the intervention of an unusual number of middlemen. But the task of analysis has been simplified by able briefs and arguments on both sides.

The plaintiff is a packing house with headquarters in Chicago. The defendant is a dealer in packing house products in Springfield, Mass. Its chief executive is H. L. Handy, Sr., who had been in the business for, 38 years. His son, H. L. Handy, Jr., had been associated with him for about 12 years, and had the title of manager.

On Monday morning, June 26, 1922, Bartlett, manager in New Haven, Conn., of Winchell, a dealer or broker in food products, in Cortland, N. Y., called on Handy, Sr., in accordance with his regular practice, and obtained a bid for five carloads of hams, 18 to 20 pounds, average weight, at 261/2 cents. Bartlett wired Winchell in Cortland at 1:25 p. m. as follows:

"Handy offers 262 cents for five cars 18 to 20 green skinned hams. Shipment one car every three days. Might buy 18 to 22.

On the same day, Bartlett received from Winchell a telegram as follows:

"Referring to Handy's offer, don't think can buy 18 to 20 green skinned hams at 261/2 cents but might buy if you make average 18 to 22. Can I do this if necessary?" About noon

Charles F. Choate, 3d, of Boston, Mass. (Marcien Jenckes, of Cambridge, Mass., on the brief), for defendant in error. 3 F. (2d)-7

2 o'clock Handy, Sr., told Bartlett that he had covered his requirements, but would take at 27 cents one car shipment on July 10.

But Winchell, not treating his telegram of June 26 to Bartlett as a refusal of Handy's original offer, had, after telegraphing various concerns, sent on the night of June 27 to Cross, Roy & Saunders, pork product brokers in Chicago (hereafter called Cross), a telegram to book Handy 150,000 pounds green skinned hams 18 to 20, 262 cents. Cross, on June 28, ordered the hams from the plaintiff by 'phone, and on the same day so telegraphed Winchell. To this telegram Winchell on June 28 at 1:50 p. m. wired, "Message received satisfactory Handy as per your wire."

When Winchell received this telegram of June 28 from Cross, he had heard nothing further from Bartlett except a telegram dated June 27, transmitting Handy's bid of 27 cents on one carload, pursuant to the arrangement made between Bartlett and Handy, Sr., at 2 o'clock on June 27. He had left his statement that he did not think he could buy at 262 cents standing unmodified. On June 28, Winchell, as a result of his dealings with Cross, wired Bartlett:

"Decline Handy cornbelt car 18 to 20 green skinned hams. Sold Handy 150,000 pounds 18 to 20 green skinned hams 261⁄2 cents cost and freight 30,000 pounds shipment June 30, July 3, 6, 10, 13, or within forty-eight hours of dates specified and ship on dates specified if possible. We worked hard on this."

"Cornbelt car" refers to defendant's offer to take one car at 27 cents.

Bartlett receiving this telegram on June 28, telephoned Handy, Sr., in the evening at Handy's home, and told him that they had bought him five carloads of hams and asked if he could use them. Handy, Sr., replied that he had already filled his requirements and did not want the hams, but to call him up at 8:30 the next morning at his office and that he would then see what he could do. On that evening, Barlett wired defendant a night letter, saying:

"Confirming telephone conversation have bought you five cars 18 to 20 green skinned hams 262. Shipment June 30, July 3, 10, 13, 16 or within forty-eight hours of these dates. Mr. Winchell wires worked hard to get these for you.

Bartlett testifies that this telegram was intended by him as a mere memorandum, and not as a confirmation of a sale. Handy, Sr., was not at his office the next morning, having left for New York on a very early train because of an unexpected call. Bartlett called up and talked with Handy, Jr. Bartlett did not tell Handy, Jr., of the "mix-up"

over his talk the evening before with Handy Sr. Handy, Jr., had not talked with his father; but he had found Bartlett's night letter "confirming telephone conversation," etc., as to the purchase of the five cars at 262 cents and also a confirmation of a sale of five carloads from a Boston concern with which his father had placed an order on June 27 after Bartlett had notified him that Winchell could not meet Handy's original offer. After futile attempts by Handy, Jr., to telephone his father in New York, he told Bartlett that if they would delay shipment a week the defendant would take the hams. Bartlett thereupon, at 8:46 a. m., June 29, wired Winchell that Handy would use the hams if shipment were delayed one week. Winchell transmitted this message through Cross to the plaintiff, and the change as to shipping date was accordingly made.

But after his return from New York, Handy, Sr., having learned what happened, called Bartlett up on June 30, and told him that he could not and would not use the five carloads of hams. Bartlett forthwith called Winchell and told him of Handy's position. But Winchell did not notify Cross or the plaintiff of what Bartlett had told him. Instead, he tried to keep the matter open and dispose of the hams in some other way. Meantime, one carload, shipped on July 1, was accepted, and later paid for by the defendant.

There is some discrepancy in the rather extended evidence concerning this carload and the "cornbelt car." We omit details; simply noting that we do not, under the circumstances disclosed, regard defendant's acceptance of this car as evidence of ratification of the alleged contract for five cars, and that plaintiff credits this car to the contract, thus claiming a breach as to only four cars.

The plaintiff's assistant manager of the provision department testified that it took the order on June 28 by telephone from Cross for an unknown customer of Cross's; that on receiving the name of the purchaser it sent on June 28 to the defendant, by mail, a confirmation in the usual form; that this confirmation was never received back from the defendant; that also on the same day a confirmation was received by the plaintiff from Cross; that on June 29 the plaintiff was informed that the shipments were to be delayed a week, to which the plaintiff agreed; that on July 8 plaintiff wrote the defendant to the effect that under date of June 28 it had sent defendant a sale confirmation; and that as it had not received the original, duly signed, it asked to have it by return mail.