IN RE ORl'iE.
congress, and that as there is no cause of action against the eity, ttie bill would be dismissed.
NOTE.-A state may authorize the construction of a draw-bridge across a navigable stream. Gibbons v. Ogden, 9 Wheat. 203; Pennsylvania v. Wheeling, etc., Bridge Co. 13 How. 607; Silliman v. Hudson Riv. Bridge Co. 1 Black, 582; 4 Blatchf. 74,395; Albany Bridge Co. 2 Wall. 403; Silliman v. T. W. T. B. Co. 11 Biatchf.288; Palmer v. Com'rs of Cuyahoga County, 3 McLean. 226: Pennsylvania v. Rensselaer & S. R. Co. 15 Wend. 113.--'-[ED.
(Oircuit Oourt, E. D. PennByZflania. April 28,1882.)
LANDLORD AND TENAN'l'-EvIOTION-BuRRENDER-BANltRUPTCY-J)AMAGEB FOR BREACH OIl' COVENANT TO PAY RENT.
A lessee, whose goods were under distraint for rent, made an assignment for the benefit of his creditors. The assignee, while disclaiming any interest in the lease, made an arrangement with the lessor by which the distress was withdrawn, he promising to pay the rent then in arrear, and all rent which should accrue during his occupancy of the premises, and to inform the lessor when he would vacate. About two months afterwards he vacated the premises, sending the key to the lessor, and paying the rent up to that day. The les80rthereupoli re-entered and rented the premises to other parties for a less rent. Held, that there was neither an eviction of the tenant nor a surrender of the lease, and that the lessor was entitled to prove against the lessee's estate in bankruptcy for damages for the breach of the covenant in the lease to pay the subsequentlyaccruing rent. .
Appeal from the order of the district court allowing proof in bankof the claim of the trustees under the will of Joshua Francis Fisher against the bankrupt's estate. The facts on which the claim was founded, as reported by the register, Sussex D. Davis, were as follows:
The bankrupts by a written lease rented the store 626 Chestnut street, adel, hi I" from the trustees Joshua Francis Fisher, deceased, for two years from January 1,1876, at a yearly rental of $8,500. The lease contained, inter alia, the following clauses: "And the lessees for themselves, their legal representatives and assigns, do hereby covenant and agree with the lessors, their legal representatives and assigns, to promptly pay the rent hereby reserved on the day, and times herein . . specified. · · I/< "Provided always, and these presents are on condition, that the lessees shall faithfUlly perform said covenants,and on breach of any of them it shall be lawful for the lessors to re-enter on the premises as of their former estate.
"Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
And it is further expressly agreed that in case the lessees shall violate any of the covenants herein contained, on their part to be performed, then the lessors shall have the power to terminate this lease, and any attorney in behalf of the lessees may sign an agreement for entering an action of ejectment in any court of competent jurisdiction. * * * No such determination of this lease, or taking or recovering possession of the premises, Rhall deprive the lessors of any action for rent or for damages for the breach of any covenant herein eontained. * * *" On October 23, 1876, the bankrupts made a voluntary assignment, for the benefit of creditors, to Robert Dornan, of the city of Philadelphia, who accepted the duties of his position as such assignee, and proceeded to take possession of the stock in trade (carpets) of the said Orne, at the same time disclaiming any interest in said lease. The assignee found said stock of goods in the store, at No. 626 Chestnut street, under a distress laid by the lessors for rent in arrear, and a constable in possession. An arrangement was then made by him with the lessors, by which it was agreed that the distress should be withdrawn, he promising to pay the rent then in arrear, and all rent which should accrue during his occupancy of the premises. This arrangement was carried olit, and on or about December 12, 1876, in accordauce with a pnivious agreement that he should inform the l,essors when he would vacate, he sent thekeys of the to J. Warner Erwin, the agent of the lessors, at the same time paying the rent up to that day, as though it accrued from day to day. The lessors thereupon rented the premises to other tenants at a lower rental. Subsequently, the lessees having been adjudicated bankrupts, the lessors presented the present claim against the estate, claiming as damages, for the breach of covenant to pay rent, the rent accruing after the assignee vacated, less the sums received from the new tenants. To this claim the assignee in bankruptcy objected, on the grounds that there had been no breach of covenant when the lessors re-entered; that the assignee, not having accepted the lease, could not authorize the lessors to relet; and that the entry of the lessors, and their reletting of the premises to other parties, was an eviction.
The register, after considering the question whether the claim for damages was provable in 'bankruptcy, and deciding upon the authority of Ex parte Houghton, 1 Low. 554, and Ex Parte Lake, 2 Low. 544, that it was, overruled the objections and sustained the claim, and };lis report was sustained by the district court. From the order of the distriot court the assignee in bankruptcy took this appeal. R. P. White, for assignee. George Biddle, for landlord. McKENNAN, C. J. The argument of appellant's counJ'!el is ingenious and impressive, and if his premIses are conceded, his conclusions cannot be gainsaid. If the lease hetween Orne and Fisher's trustees was surrendered, with intent to terminate it, the trustees could not the obvi- '\ assert any claim for a subsequent alleged breach of it,
IN BE OBliE.
ous reason that a. contract, canceled by agreement of the parties, ceases to exist 'thereafter, and is not susceptible of a,ny breach. And so, if the trustees evicted their tenant, their right to demand and recover rent from him was thereby suspended. But there was neither an eviction of the tenant nor a surrender of the lease. Practically there was an abandonment of the leased premises by the tenant. He was in default for rent accrued, confessedly became insolvent and unable to pay the rent as it might fall due, and transferred his leasehold interest, and the possession of the leased premises, to his assignee. The assignee went into possession, paid the rent in arrear under the constraint of a distress warrant, retained possession for about two months, paying the rent for that period, but declined to accept the lease, and then sent the keys of the premises to the landlord, by whom they were accepted, and to whom one week's notice of an in.tention to vacate the premises had been given, in. pursuance of an understanding to that effect. ..' , Now the fair import of these .circu,mstances is that the tenant did not intend to keep the premises,. or to pay the accruing rent, or W observe his covenant, and that he actually vacated and the premiself without the consent of the lapdlord. Certainly the landlord did not agree to a termination of lease, and it is clear to me that his acts do not wa;rrant such an implicationr In such thus exan emergency he was not bound to stand listlessly by, pose his property to the peril of dilapidatio:q and injury, but in the interest of both parties he might resume possession of it, take proper care of it, and manage it for the benefit of his defaulting tenant. This is what he did do, and he cannot, therefore, be, held. W·have intended to,absolve his tenant from the obligation of pi.seovena:qt, and from liability for damages resulting from his breach .of it. I am therefore of the opinion that proof of damages, measured by the amount of the rent which the tenant covenanted to pay fortlls remainder of the term, less the by. the for intermodiate leases to others,. was properly allowed, that t4is a.ppeal must be dismissed with. costs, and is. so ordered.
GINTER 'V. 'KINNEY TOBAOCO CO.
(Circuit Court, S. D. NetO York. July Hi, 1882.)
TRADE :M:ARK- cc STRAIGHT
CUT." . The term" straight cut," as applied to cigarettes, is a term descriptive of the ingredients and character,of the article used, and can.not be appropriated as a trade-mark, so as to preclude another from advertising cigarettes made of straight-cut tobacco.
SAME-USE OF TERM TENDING TO DECEIVE. The USIa of a term complainant in a manner
by calculated to mislelld the public in reference to the components or nature of the article to which it is applied, will not be tolerated.
Wm. D. Shipman, for complainant. Charles B. Meyer, for defendants. WALLACE, C. J. So far as appears upon this motion the term "straight cut," as applied to cigarettes, is a term descriptive of the ingredients and characteristics of the article, and therefore the complliinant cannot appropriate' it as a trade-mark and enjoin the defendants from advertising their article as "straight-cut cigarettes." In the preparation of smoking tobacco several different processes of cutting the leaf are employed, and the product is designated by the term which describes the particular process which it has undergone, such 'as straight cut, curly c'Ut,ldng cut, and fine cut. "Straight cut" designates that particular product in which the plant has been so cut and treated at the time of cutting as to preserve the fibers ·16ng, even, straight, and parallel when 'prepared for sale or use. It is stated also that the choicer varieties of the plant are usually selected by this mode' of 'treatment, and the product is especially desirable for cigarettes'. In view of these facts it is evident that when the term is applied to cigarettes it illlpliesthat they are made of' straight-cut tobacco. Tb.e complainant advertises his tobacco as straight cut, curly cut,. etc., but always adds some further appellation, such as Twin Pet straight cut, Perfectionctii'ly cut, etc. In a circular 6f May 1; 1881" he states that his "straight-cut tobaccos are cut. from the choicest varieties of Virginia gold and sun-cured leaf, and are cut to lie straight in the boxes, and are very desirable for making cigarettes." He now insists that the term was selected and has been employed by his business predecessors and himself as an arbitrary designation of his particular article, and that neither his cigarette nor the defendants' are made of straight-cut tobacco. All this, if true, does not.