CLEVELAND STONE CO. fl. WALI.ACE.
CLEVJ<jUND STONE CO.
v. W ALtACE. et al.
May 2, 1892.)
(Circudt COUrt, E. D. Michigan.
SAlIQC-EQUITABLE DEFENSE-QUALITY OF GOODS;
B.· SAMm:-MISREPRESENTATION 011' MANUFACTURER. The between scythe and whet stones made and sold by plaintiff under the naI\les of "Quinnebog," "Western Red ;Ends," "Star," "Diamond," etc., consisted mainly in patterns, "ize, and finish. Plain.tiff's circulars stated that the variou!! pat-terns were. made at "Willow Creek Quarry,"" Green Farm· Quarry, ., etc., and, "from selected Huro.n grit," and from the best blue. Huron grit j " but the context of the circulars showed that all were made at quarries in the same city. HeW, that the fact that all were made from the same quarriell or rock formation wall Il,ot evidence of a material false statement! as the plaintiff had the right to associate one trade·mark with a name arbitrarill given to a part of his quarries; or to represent that the stones were. made from. selected" or from" best blue Huron grit," so long as he furnished the same article aud the same qualit,y demanded by·the preference of his cUstomers. .
·· SAME-RELIEII' FOR FRAUD.
Wpereit clearly appeal'S that defendants have closely imitated pia,lntlff'slabals, patterns, and style, and have done obvious damage to his business from the businells methods employed, plaiutiff is entitled to relief on the ground of fraud, independently. oftpe validity of his trade-marks. .
InEquity. Bill by the Cleveland Stone .Company against John E. Wallace! Lee R. Wallace, William H. Wallace, and Margaret Wallace to restrain: infringement of trade-mark. Temporary injunction granted. Elbridge F. Bacon, for complainant. John D. Conely, for defendants. SWAN, District Judge. This is a motion for an injunction to restrain the defendants from the selling and offering for sale scythestones under certain names and labels which are claimed by plaintiff as trade-marks. The plaintiff is a corporation organized in 1886 under the laws of OhIo, and since that date has been, and still is, engaged in the manufacture of scythestones, whetstones, and grindstones.. Its quarries and factories are situate at and near Grindstone City, Mich. Upon its organization in 1886 it purchased the quarries, factories, and plant at Grindstone City, and the good will of Worthington & Sons, who had carried on bueiness there for 15 years or more. On the 23d of January, 1890, plaintiff bought the quarries, plant, business, good will,and entire property of the Lake Huron Stone Company, at Grindstone City, where the latter company had been quarrying and manufacturing grind and scythe stones since 1869. The Lake Huron Stone Company and Worthington & Sons, up to the time of said sales to complainant, had for
many years made, among other brands of scythe and whet stones, the "Diamond,''''Western Red Ends," "Quinnebog." "Star," "Clear Grit," and "Lake Huron," and others, which had taken well with the trade, and were widely known as the product of the Grindstone City quarries, which stood well in the esteem of the western trade. For some years plaintiff's vendors, the Lake Huron Stone Company and Worthington & Sons, had by agreement made and sold certain styles of scythe and whet stones under ,the same trade-mark or designation, except, that the labels of. each firm', which were in all other respects fac similes, truly stated the name Qfthe manufacturer; as, for example, Wo.rthington & Sons made and"sold scythe and whet stones under the 11ame"Q.uinnebog," but labeled maQufacture of Worthington & Sons, instead of "Lake 'Stone Co.;" which was the originator and, owner of that trade-mark., In ,like manner, the Lake Huron Stone Company labeled as"Western!l:ed Ends" certain patterns of their mantlfacturers, similar in Sizei form, and appearance to those of that n.l\njemade by & 8,ons, designating themselves on the were otherwise identical) as the makers, instead of WorthSons. It appears that in 1870 these firms formed a po,01',or' association at Chicago,Ill., to supply the western markets, tpe' name of 'tne, "Westem Grindstone Company;" ,This, assaciationcontinued until' 1886, when plaintiff, as stated,bought out & Sons. The Western Grindstone COmpany had its warehouses at Chicago, and there received the products of the quarriesof its two constituent firms, and filled the orders, of its customers equ.ally the stones supplied by each, and used as trade names on the scythe and whet stones tlrewords "Star," "Clear Grit," "Lake Huron," ",Quinnebog," and other marks or, namespeCllliar to each sub'ordinatecpncern, or common to both, though for a time varying the form anq, color of the labels frotnthose employed by the makers. Later in its history the Western Company adopted labels on these various styles and patterns, designating either Worthington & Sons or the Lake Huron Stone Company as makers, in addition to its own):lal'lll(. In Jan",ary, 1883, the Lake Huron Stone Company, Worthington & 80ns,J. J. ,McDermott & Co., of and the Berea. Stone Company, of Ohio" united to form a pool under the name of th,e Berea &, Huron !3tone C0 rIl pal,1y, and under that name catalogued and offered for sale the various brands and patterns of scythe and whet claimed in the bill to be the trade-marks, brands, and patterns of complainant. This pool continued until. 1886, when it was by the sale by Worthington & Son8to complainant. The affidavits also show that Cooper, Grevey & Co. ,. the predecessors in business' of Worthington & Sons, had, in 1870, made and sold scythestone.s of like patterns under similiar labels and of the same names with by the Lake Huron Stone Company, without objectioA by the latter. Since 1886, however, no person, firm, or corporationother. complainant and the Lake Huron Stone Company claiJped, or simulated the labels, names, or trade-marks here in
controversy, and this is admitted by the answer. They preserved the general style and appearance of the label now in use by plaintiff, in. cluding the names applied to their various patterns of scythe and whet stones, and those names and labels, thus applied, have been known and associated to the trade for many years. There was at one time a stone known to the eastern trade as "Quinne. baug," made .from a Connecticut quarry, which was exhausted some 30 years. The name consequently fell into disuse, and at the time of its adoption by the Lake Huron Stone Company, in 1869. or 1870, there had not been for many years a stone known to the trade by that name, though some four or five years later brands known as." Premiurn Quinne. baug, " and "Extra Quinnebaug," made from stone of obviously different chl,lracter, formation, and color, were introduced into the eastern markets. The eastern "Quinnebaug" referred to were also marked by labels bearing no resemblance to those used by plaintiff and its predecessors. So far as appears from the affidavits read on the hearing of this motion, the Lake Huron Stone Company, and the Cleveland Stone Coinpany, all the vendee of Worthington & Son!'!, have used the names "Quinnebog," "Star," "Diamond," "Clear Grit," "Lake Huron," and "Western Red Ends" without interference by competitors in business, certaInly since 1886, and the first-named company and Worthington & Sons were the only claimants. of those trad.e-marks and labels for 15 years before that date, The affidavit of Robert Wallace, submitted by defendants, clearly shows that theLake Huron Stone Com pany made the" Star," "Clear Grit," and "Lake Huron," "Quinnebog," "Tiger Crown," and "Harvest Queen" brands from 1868 to 1890, and for nearly as long a time the "Western Red Ends," though he disparages the exclusive right of that company to the names and labels as trade-marks, and denies that it ever claimed such right, or objected to their appropriation by others. The force of this denial is greatly impaired by the fact that the affiant is the father of the defendants; and, though he was a member of the partnership known as the _Lake Huron Stone Company from the year 1868, and joined in the sale of its quarries, business, good will, and property to the plaintitl'in January, 1890, and therefore much should be conceded to his meims of knowledge, the fact that he now appears to depreciate his grant, when he covenanted with the plaintiff, as one of the conditions of the sale, not to engage in the business in that vicinity for 20 years, militates .most strongly against the credibility of his denials, His relationship to the defendants, and the tenor of his statements, are more persuasive that, while he nominally observes his covenant, and has not personally engaged in the business from which he agreed to abstain, his interest now lies in the direction of detracting from the value of the property which he sold, and for which he received his share of the purchase money. The formation of the Huron Grindstone Company, under which name defendants are carrying on. buainess and offering to the trade the various brands and patterns of scythe and whet stones under the same names, v,-52F.no:5-28
and labeled (excepting !!ubstitu-. tionof thE! name ",lIqron Grindstone Cp.". for Stone Co.,") heels of ilie sale by the Huron Stone followed too t,oljntige.this affidavit to be with favor, Company even if the facts were doubtful.' The proof is undeniable t1.lat since the defendants hl!ov:e themselves in their present business they have Rimed directly. llnd customers. of the pillintiff by the use of almost exact its trade-mark, and thus sought to reap the fruits of, the enterprise' and' outlay made by plaintiff. and' its predecesfair .a,odQpencompetition is entirely 'proper, and of public sors. benefit, it; is not permitted to a tradesman or m::lnufacturer toappropriate the labels, brands, parnes adopted by his rivals, ,nor to announce to. the trade :hili!. abilitya.ud readiness to supply the customers with ,the very arm.cle,W1<;l,er the same name and label*or 'which the of the trade-mark l\a,ve.xp'ade a market. energy apd;mEl/ll1s of Neitheris;it permitted that. he shouldso closely simulate the brands and labels of ,his neighbor that the pUQlic should be misled, into purchasing they are the product or IUallufacture .of thpse his good& In, the; belil'lf w.ho introduced and gay.lilthemreputatipn. The circular to the trade issued by ,qefEl1!l4ants at the formatio,n of. .their partnership announoed allorderMor grindstone apd that they were (indicating the brands f'Quinnebog,": "Clear Grit," "Western Red Ends.") Not content with this, theY,h,ay:e ,simulated the style, design, color, andrexa,«;:t phraseology of the printed matter of the only the labels used by plaintiff to designate those manufacturer's name, for which they. have substituted their own, "Huron Grindstone Gom,paI,lY." ,leave no ,doubt that by these means., ,lj.Q<! by «;:utting the .p;rices on these wares, the defendants have made large inroads tLPoIlthe built up by plaintiff, and have, .and still al:e, doing plaintiff great injury. SQ Closely, indeed, bavethe defendantsip)itated patterns of pIaill tiff, its packages, and ·the style that Robert Wallace, inllis affidavit (made alia intuitu, ipdeed, but for .that reason m,ost sigJ;lificant) says that, "if a box ofscythl1stones of !louy. sU<lh names should be brought to city of Detroit without having upon it the of the. person by wihom it was manufactured, and submitted to persons in the trade who .Wefe fa'o;liliar wIth said scythestones, such person would be unable to tell whether the same was manufactured.l:ly the Cleveland Stone Company Qrby the defendants inthis case." If: we add .tothese features of re,semblance between the products themEfelv,es the almost exact duplication being deceived in the purof the labels, the likelihood of chase of defendants' is almost a cl(rtainty, and may well be inferred as a carrolary from the. fll-cts, even. if. the affidavits did not expressly establish the injurious effects of such competition. 1. The first point urged for the defense is that plaintiff has failed to show an,exclushre right in the use of these names and labels as trademarks; but the fact, that the 14ake Huron Stope Company and Worthington & Sons, up to 1885,used them in cOolmon, and made and sold
CLEVEJ,.AND STONE CO ·. '11. WALLACE.
the:"patterns ofscythestones involved in thiuuit, and that from 1876to 1885 tbosefirms, under the name oftha ,Western Grindstone Company, sold their manufactures under similar labels, and put up in like packages, and during the year 1885 united. with others .to form the Berea & Huron Stone Company, which also offered and sold scythestones of like patterns· and under like labels ,with those theretofore used by the Lake Huron Stone Company and Worthington & Son!!, deny to brands and labels thus indiscriminately used the protection of a court of equity. It is true that the owner of a cannot permit its use by others to such a degree that it will lose its original significance to the public as an index and assurance of the origin, qualities, and characteristics of the article to which it is attached, and still ask the aid of the courts t() prevent its use by others without the owner's consent. He should be regarded as having renounced whatever of profit and reputation the trade.;mark had won for him, aud as having consented to foist upon the public 8. spurious substitute for that to which he had given repute, and as having disclaimed his original exclusive right. There is, however, no occasion for the application of that doctrine to the plaintiff' in this case. Whatever objections might have been raised to the relief here sought were the Lake Huron Company or Worthington & S013s asking preventive aid against the use of their trade-marks by Cooper, Grevey & Co; or other unlicensed appropriators, it is clear that the transactions relied on as depriving plaintiff of .protection do not affect it. Those transactions are too. remote in time, and their demerit, if any, is not imputable to the plaintiff. From 1885 to 1890-a period of five years before the defendant entered into this business-plaintiff and the Lake Huron Stone Company alone employed the trade-marks and labels and made the patterns of the scythestones which the defendant is now offering to the trade. Since plaintiff's purchase of the Lake Huron E;tolle Company's property, quarries, and good will in January, 1890, and up to the time defendants began manufacturing and selling, or corporation has assumed to make or vend scythestones of its patterns, or questioned its exclusive right to use the labels and trade-marks in controversy to identify its wares to the public. Since its organization, plaintiff has, in co-operation with the Lake Huron Stone Company, and latterly alone, at great expense, and by advertising and other legitimate luethods, built up a large and lucrative trade, and has by its enterprise established a reputation for its manufactures which gives them a ready sale to the trade. To permit defendants to purloin the fruits of their enterprise and investments, and encroach upon their business, either on the pretext that plaintiff's predecessors in the business had years l,\go submitted to a like injury without complaint, or on the plea that at one time the trade-mark had been enjoyed by others than its originator, would bea denial of justice. While it is commonly said that to entitle the owner of a trade-mark to protection against infringers his right. to tha its use must be exclusive, it is not meant thereby that no other ol'iginator has rightfully employed it. Such a right is property trans· ferable and descendible,and may be the subject of ownership by two or
ttlo\le,witboufimpairing: of its owners to iedress for its unlawfril'use by others. New York' 'Cement 00. v. Coplay Cement Co., 45 Fed. Rep. 212; Kidd v. Johnson; 100 U. S. 617; Chemical Co. v. 139 U. S. 540, 547, 11 Sup. Ct. Rep. 625; Burton v. Stratton, 12 Fed. Rep. 696,704.. '£he right to protection for such property is founded on two considerations: (1}That the owner, by its adoption and use, has acquired a property which to him is valuable; (2) that the use of the symbol or device in sucha-manner as to mislead the public as to the origin of the article is a fraud· alike upon the purchaser and the proprietor whose trade-mark is simulated, his sales thereby lessened, and his reputation perhaps discredited by the inferiority of the article substituted for his manufacture. No definite length of time is requisite to confer this l'ightof property, provided the injured party has, by priority of adoption, appropriated the name or symbol as peculiar to his merchandise, 'and indicative of its plaee of manufacture. He meets this requirement even if he selectsll nam'eorsymbol the use ofwhich had been abandoned by 'others whenb:eemployed it. O'Rourke v. Soap Co., 26 Fed. Rep. 576-578. Whether, by 'their co-operation i at Chicago under the name of the Western Grindstone Company,ol" their subsequent association with Mc. Dermott & . Co. aDd the Berea-Stone Company, the Lake Huron Stone Compimy and Worthington & 'Sons became partners, it is unnecessary to decide. It is fairly inferable, however, that the agreement under which they were thus associated regarded ,the trade-marks which each party contributed to the several concerns aSl'everting to their original proprietor on the termination of the pool, as might lawfully be done without detriment to the trade-mark on the dissolution of a partnership. No deceit was practiced upon the public, as the origin and place of manufacture oftlie brands were truly stated and. catalogued. In short, these businessarrttIlgements were mere 'temporary licenses or assignments of proprietary rights in the names, symbols, and patterns, of. which no one could complain. But, were this otherwise, the lapse of time since the expiration orthe associations referred to, and the adoption and undisputed use 'by plaintiff and its predecessors of the designs and names affixed to theirW'ares, has sufficed to heal the infirmity, if any, which might otherwise have been charged against plaintiff's title, even were plaintiff's predecessors asking the relief here prayed, and, a fortiori, in favor Of plaintift',who is a stranger to the transactions urged against its exClusive right. . . . , 2. It is next a:rgued as an equitable defense that defendants' wares 'are of equal quality with 'the plnintiff's. Many oftlle defendants' affiare framed on the theory that'tlle court will in this class of cases inq'qireinto the ,comparative merchandise of the parties. That issueis not material here. Where the infringer has, by the introduHion, under simulatedtrade-mtltks,:of greatly iriferior articles, both . the public into their purchase and discredited the integrity and reputation of'the proprietor ot-the trade-mark, the two considerations ist which impel Courts 'to net atthe instance of the injured party, viz.,
CLEVELAND STONE CO.
the protection of the public against the fraud, and redress of the private wrong done the individual. But it is not essential to the latter's relief that the deceit practiced should be actually injurious to the publio. It is enough if his right has been infringed, and his business impaired. by the false colors of his competitor. McLean V. Fleming, 96 U. S. 252. In fact. a more permanent injury is inflicted upon the tradesmen whose goods are supplanted in the esteem of his customers by those of equal quality, offered under his trade-mark, and at lower prices; since the competition of an inferior article is likely to be ephemeral. In this view the excellence of the counterfeit intensifies the wrong done to the plaintiff, and is a cogent argument for his right to reparation, although the public have suffered no actual injury. 3. Was there any misrepresentation as to the manufacturp,r,or place of manufacture, of the scythestones for which the plaintiff asks protection, which ought to bar the relief it seeks? The groumlon,which courts deny their aid to artic1esthus put forth is that a party who seeks equity must come with clean hands, and, if his case discloses fraud or deception, courts of equity will not interfere in his favor. j'l1edicine Co. v. 'Wood, 108 U. S. 218,225,2 Sup. Ct. Rep. 436; Leather Cloth eo. V. American Leather Cloth Co., 11 H. L. Cas. 523; Fetridgev. Wells. 4 Abb. Pro 144; Seabury V. Gro8venor, 14 Blatchf. 262. These cases, and ·numer<lUS others in which the same doctrine is followed, proceed upon tp.e ground that the complainingpart)r, either in his trade-mark or in the business connected with it, has made material false statements to enhance the merit of hie goods, by claiming for them an origin, ingredi nts, materials, or process of manufacture which they lack, and which, singly or together, commend them to public confidence, which is thereby betrayed. It is claimed that the case of the plaintiff is brought within the operation of this rule by its own and its predecessors' circulars and .catalogues, stating that the· various patterns and brands of scythestones in controversy are made at, e. g., the "Willow Creek Quarry," "Green Farm Quarry," "Pt. Au Barques Quarry," etc., and "from ,selected Huron grit," "from the best blue Huron grit," etc., whereas the stones of various names were made from the same quarries. The context in which these statements nre found makes it plain that the quarries thus designated are located at Grindstone City, Mich., and in some cases this is expressly stated. There, is nothing to prevent plaintiff from thus nominally subdividing its properties at that place, or giving to these tit· ular subdivisions such names as fancy may suggest. There is in such nomenclature no material false statement, nor is the public misled into the purchase of one class of goods instead of another. If the manufacturer chooses to associate one brand or trade-mark of his goods with a name arbitrarily given to a part of his works or quarries, no wrong is done to the public, so long as he furnishes the identical article demanded by the preference of his customers. The representation that the stones .are maae from" selected" or "the best blue Huron" grit are substantially satisfied if the quality of the materials used is not inferior to that which .the trade have accepted as of that grade.
The. poiMs of difference between the- stones made and sold by plairi. tiff under:the'names of "Quinnebog," "Western Red Ends," "Star,n "Diamond;" Grit," "Lake HUl'on,"mainly consist in patterns, size, and finish. The "Western . Real :mnds''' are distinctly marked in themannel' the name. The "Quinnebog" is characterized by a peculiar' finish. ,:The fact that all are made from the same quarries arrock formation is not evidence of a material false statement. The mimes are employed in accordance with· business usage, to signify varieties of shape, size, etc., which have acquired a reputation with the trade, and to meet its demands. i It is nowhere said that there is any difference in the characteristics or quality of the material from which the different patterns are made. Thesourcc'whence this is derived, the place of its manufacture, and the maker's name, are truly set forth, and, as the quality of the plaintiff's goods is not questioned, no rule of equity or public policy is violated in allowing it, to styleitsvarious manufactu;res by as many different appellations as maybe Mcessary in their judgment to invite and secure markets for their merchandise, if in so doing no material false statement is made. 4. The close imitation of the plaintiff'S labels, patterns, and style evidenced by the exhibits of both parties and ,the catalogues and circulars issued to the trade, and the ,obvious damage to plaintiff's business from methods employed 'by defendants, entitle plaintiff to relief on the grounu'of fraud, independently oftllevalidity of the trade-marks in questiODJ La:wrerlceManufg 00 v.Tennt188ee Manufg 00.,138 U. S. 587, n Sup. Ct. Rep. 402; Barton v.' StratUm, 12 Fed. 'Rep. 696; White Lead Cb.v. C'ary,25 Fed. Rep. 125; Bi:dcing P(Y/J)der 00. v. Davis, 26 Fed, Rep. 293; Nrtil Co. v. Bennett, 48 Fed. Rep. 800; Societe Anonyme v. We8ternDi8tilleryOo., Rep. 416; AVlrrY v. Meikle, 81 Ky. 73; Pierce'v.>GUittard, 68 Oal. 68,8 Pac. Rep. 645; FiUeryv. Fassett, 44 Mo. 17'3.,. The admitted facts,and the perfect correspondence oi defendants' labelsin size; form, color; design, ornamentation, and phraseology, and in the names of the patterns, leave no doubt of defendants' intention to make it market for their goods with the plaintiff's custOmers by On close imitation of its trade-mark. The means employed were adopted to accomplishthe purpose, and the plaintiff has suffered damages which it is the duty'ofthe court to arrest and redress. The motion to dissolve the restraining order is denied, and a temporary injunotion will issue according to the prayer of the bill.
LEIGI;lTON V. YOUNG.
et al. V. YOUNG et· al.
(Cirauit Court of AppeaZ8, Eighth Otrcuit. September 20, 1892.)
No. 123. 1.
EJECTMENT-OCCUPYING CLAIMANTS-FEDERAL COURTS-EQUITY JURISDICTION.
The rights given by the' Nebraska law (Cobbey, Consol. St. c. 47, §§ 4386-4389) to an occupying claimant after a judgment in ejectment. against him are enforceable in thafederal courts, and when such court has obtained jurisdiction in equity by means of a bill to enjoin the execution of a writ of possession it will retain the cause for the purpose of enforcing all the rights given by the statute, especially as such enforcement requires the ascertainment of the value of the lands and the improvements, and an accounting of rents and profits, which matters are not exclusively cognizable in law. In enforcing such rights. however, the federal court Is not bound to follow the method of· procedure prescribed by the statute, namely, thE" appointment of. three appraisers to ascertain the value of tbe land, the improvements, and the rents and profits, but may refer the 'Cause to one or more commissioners, or to a master, according to its ordinary procedure.
2. SAME-REMEDIES-FEDERAL PROCEDURE.
SAME-CONSTITUTIONAL L A W . '
Cobbey, ConsoL St. Neb; 1891, c. 47 §§ 4385-4889, providing that a successful plaintiff in ejectment shall, at his eiection, either pay the occupant the present value .of the improvements, or convey title to him, and receive in return the value of the 'land as of the date at which the occupant entered thereon, is a valid exercise of the legislative power of ,the state. The last clause of section 4380, containing an implication that, unless the OOCUpant'tia;ys the value of the· land on demand of the owner, he must be turned out of posse8jl1onJ which was a part.of..a previous act, but il! in conflict with subsequent sections oI.this act in amendment thereof, is superseded by such sections. The object the act being to prevent a forfeiture of the interests of either occupant or owner, a court of equity should treat them as having rights in the property in propOrtion to the value of the improvements aud the land, respectively; and, in case neither party is willing to cC)mpensate the other as provided in the act, the court, upon motion of either, will decree a sale, and distribute the proceeds in such proportion. When a federaloourt construes a state statute with reference to a new question, and the state court of last resort subsequently interprets it differently, the federal court should thereafter conform to such interpretation.
4. SAME.,.-CONFLICTING SECTIONS-REPEAL.
5. SAME-FORIlEITURES....EQUITABLE REMEDIES.
FEDERAL COURTS-FOLLOWING STATE DECISIONS.
Appeal from the Circuit Court of the United States for the District of Nebraska. In Equjty. .Bill by Harriet W. Leighton and Charles M. Leighton ,against Rowena Young, Ellis L. Bierbower, United States marshal, and James H. McMurtry, to restrain the execution of a writ of possession by the United States marshal until the value of certain improvements should be paid. Injunction granted, and decree for complainants on <:ertain conditions. Complainants appeal. Reversed. Statement by CAWWELJ" Circuit Judge: In 1884, Rowena Young brought suit in ejectment in the circuit court ()f the United States for the district of Nebraska Harriet Leighton and Charles M. Leighton for the land which gave rise to this suit. On the trial of the ejectment suit the land was adjudged to belong to the plaintiff in that suit. The defendants were bona fide occupants and claimants of the land, and entitled to the rights secured to such occupant$ by the occupying claimant's law orthat state.