et al. :
'(Olrcuit Oourl, N. D. Penntrlf7rmlfl. Octobe1'6, '1890.)
horseshoe nails, which plaitJ,tift used as a tradll-mark, With the intention of deceiving the public into buying their goods:insteadof complainant's; states a charge of fraud, which should not be decided on demurrer, whether the method of bronzing is or is not a teohnical trade-mark. ' .
,A.bUl al1ejfing that defendants b.ave imitated complainant's method "f bronzing
Demul'rertopomplainant'sbilJ, which averred that the defendants had imitated their iriethod of bronzing horseshoe nails with the intention of deceiving 'the public into buying their goods instead of the Complainants'. A. B.Weime7-andF. M.Leonard, in supportofdemul'rer. Franci8 Rawle,Owen Wi8ter,' and Sydne;y G. JiTisher, for complainants.'
BRADLEY, J., (orally.) . Weare of opinion that sufficient averments are madet<;ltnake it necessary for the defendants 'to answer the bill. It is averred , "The defendants. well knowing the premises, and that. your alone possessed the rigJ1;tto bronze nails asa trade·mark, and to sell the same under tpe trade name, asabo"Ve set forth, have Willfully disregarded the same, and, intending deceive purchasers and defraUd the pnblic and to in· jure your orator;,have for some time past been engaged, luidare still engaged. your orator, uut similar in the sale of horseshoe man\lfaqtqred 'by your orator, wbich theybave had in bronzed bronzed nails, undll,rthe name of ·Imperial names,. containing the word ·Bronze;' and the said Bronze. I nalls, so bronied and sold by the defendants under the said name, have been and areof'lnferior quality to the nails' bronzed and sold by your orator under their laWful trade-mark; andpurchase1'8 and consumers have been and are deceived and misled into buying the arti<.lles so bronzed and sold by the defendants in the belief that they were and are oNhe manufacture of your orator." .
There is here a substantialfaot 'stated ,-that the public and customers have been, by the lilIeged conduct of the defendants, deceived and misled into buying 'the defendants' nails for the complainant's. That aver· ment is an.lplified in paragraph 4. or thf'bill.Now a trade-mark, clearly such, is in itself evidence, when wrongfully used by a third party, of an illegal act. It is of itself evidence that the' party intended to de· fraud, and to palm off his goods as another's. Whether this is in itself hgood trade-mark or not, itisa style of goods adopted by the-complainants which the defendants have imitated for the purpose of deceiving, and have deceived the public thereby, and induced them to buy their goods as the goads of the complainants. This is fraud. We think the case should not be decided on this demurrer, but that the demurrer should be overruled, and the defendants have the usual time to answer. The allegation that the complainant's peculiar style of goods ;is& trade-
JOHNSON 't1. OCEAN 8. 8;<:0.
mark may be regarded as a matter of inducement to the charge of fraud. 'l'he latter is the substantial charge, which we think the defendants .hould be required to answer.
JOHNSON t1. OCEAN
(Dtstrict Court, E. D. New York.' September 80, 1890.)
DJDlUBRAGE-CARGO STORED ON LIGHTERS-EvIDENCE.
The Ocean Steam-Ship Company brought cotton to New York under through bill!! of lading, by which the compauy undertook to convey the cotton to New York, and deliver it along-side certain designated foreign steam-ship lines. At one time the docks of the company became clogged with cotton, and the company shipped it on' lighters,to be transported to the foreign lines, and held in the lighters until these steamers were ready to receive it. The lighters being in consequence delayed, their owner brought this suit for demurrage, alleginjl; a special agreement by the Ocean Steam-Ship Company to pay for the time the cotton remained on the lighters. The answer alleged an agreement that the Ocean Steam·Ship Com-l pany was in no case to be responsible for the demurrage of the libelant's lighters, but that the same was to be collected from the foreign steam-ships. Held, that the steam-ship company was liable for demurrage.
In Admiralty. Suit for demurrage. Alexander & Ash, for libelant. Hoadly, Lauterbach & Johnson, for respondent.
BENEDICT, J. This is an action brought, by the owner and charterer. of certain lighters to recoverof the Ocean Steam-Ship Company the sum of $1,490, alleged to be due the libelant for the detention of his lighters under the following circumstances: The Ocean Steam-Ship Company was alarge carrier of cotton shipped in Savannah for New York under through bllls of lading, by which the Ocean Steam-Ship Company undertook'to convey the cotton toNew York, and there to deliver it alongside the steam-ships of certain designated foreign lines for transportation abroad. In October, 1888, the docks ofthe Ocean Steam-Ship Company in New york became clogged with cotton owingto the faet that cotton arrived from Savannah faster than the foreign steamers were able to receive' it. To relieve their docks, the Ocean Steam-Ship Company shippe<;l quan:tities of this cotton on lighters, to be taken in. the lighters to the piers ot the prop,er foteign steam-ships and there to be held in the lighters untif steamers were able to take it. The result was a detention of the lighters at the piers of the foreign steam-ships, e:xtending from three to ten days each. Among the lighters so used were lighters belonging to the libel';' ant, and for this detention of some of these lighters the libelant in this action seeks to hold the Ocean Steam-Ship Company liable. The sets forth a special agreement between the libelant and the Ocean SteamShip Company, as follows: '
",To carry and transport for the Ocean Steam-Ship Company this cotton to and along-side certain steam-ships in said port, and to deliver the same to the
Reported by Edward G. Benedict. Esq., of the New York bar.