PENNSYLVANIA. R. 00.
place,as 'against the defendant subsequently mam:ufacturing at the original place-Glenfield-and claiming on that account the right to use the name in connection with the starch made by him. Lord Westbury stated the point on which the final decision in favor of the complainant was re8ted, with clearness. He said:
" I take it to be clear from the eVidence that long antecedep.tly to the operations of the respondent the word" Glenfield" had acquired Ii secondary sIgnification or meaning in connection with a particular manufacture; in short, it had become the trade denomination of the starch made by the appellant. It was wholly taken out of its ordinary meaning, and in connection with starch had acquired that peculiar secondary signification to which I have referred. The word' Glenfield,' therefore, as a denomination of starch, had become the property of the appellants. It was their right and title connection with the starch."
We do not :find in the present Case any state of facts corresponding with this. The words "Old Pepper Distillery" never lost their primary signification, and never'acquired any secondary meaning j and, as. applied to the whisky made by the complainant, .the'\Vords "Old Osca;r Pepper," ani!. their abpreviation, "0.0: P../' came to mean more tha.n whisky that· had·been made at that· particular distillery. They did not become a denomina.tion of whisky as the manufacture of the complainant or of any person, but it only as entitled to public favor by reason of the' l'epl1tationof the particular distillery at which it purported:to have been m'a.de. Fo!' these reasons we are of opinion that the equity' of the 'ease, both upon the original and cross-bills, is with the defendants. A decree may be'entered accordingly. BARn, D. J., concurred.
MATTHEW V. THE PENNSYLVANU (Circuit Oourt, E. D. PennayZfJania.
June 22, 1881.)
A license to use a patented invention upon the locomotives used by a railroad company on its road, or on " any road or roads now owned or that may hereafter be owned or operated by said company," embraces not only locomotives in use at .he date of the license upon roads then owned and operated by the company, but also such other locomotives as it might thereafter use, au,d other roads which it might thereafter operate·
· Reported by Yrank P. Prichard, Esq., of the Philadelphia bar.
t;: SAME-;,-lb:GRT OF LroBN80R TO
OPERATE OTHER ROA))S·
QUlllBTION' 01l' POwmR OJ' LIOlllNl!ElIl TO
. ,One who grants to a railroad cOmpany a license to use a patented invention Oll roads" that may hereafter be owned or operated by said company," cannot subsequently, upon a bill to restrain ·the company from the use of the invention, call in question the legal right of the company to operate other roads.
Hea.ring on Bill and Plea. The. bill was filed to restrain the use of the invention embraced in letters·patentNo. 22,439, issued to complainant for an improvement in locomotive axle bearings. The bill admitted the purchase by defendarits, of a license to use said invention, but alleged that defendants had used it in locomotives acquired since the date of . the license, and under chartere<i rights and privileges acquired since that date as lessee of several railroads not contemplated or embraced in l3aid license. Defendants filed a plea, set,ting uJ? the license rematerial part aafollows: , 'f Penllsy1vania ltllJlrQad CompllllYj,s * ** hereby authorized and licensedtq make a,nd use all o(said improvements and inventions BO patented ,as aforesaid, for several terms of the p3:tents, and any extension of"either Of the same, in, uplm, arid' about the locomotiVe engines used by the said ThePennBy:lvania'RaHroad Company, on the Pennsylv'ania Railroad, or that may hereafter be owned or operated or any l'Oad or roads now :by th9;!isid l,JQmpany." 0' , Complain81nt cla.iqled em1;lraced only locomotives in use at date,. and, defen4ants. had no legal right to operate, on :whichit was using the invention. , W,illiamW.. 1IV,9bell;for complainant. , Andrew McOallum and David W. Sellers, for respondents. BUTLER, D. J. The license pleaded covers the use complained of. '1'he terms: "Upon and about the locomotive engines used by the said The Pennsylvania Railroad Company, on the Pennsylvania Railroad, or any road or roads now owned, or that may hereafter be owned or opJlrllted,by said company," are of the broadest signification, and very'pla"inlyembrace, not only locomotive engines in use at the date of the license, llpon roads then owned or operated by the company,but also such other engines as it may thereafter use, and other roads which it may operate. The cOJ;ltracted interprtation claimed by,the plaintiff, is not justified by any rule of construction" or any 'special l ei;rctttllstancesappearing in. the case;......Nor can th;eplaintiff CiLI!, question the 'defendant's rig1it to operate the roads on which the engines are employed., The license was intended tn cover all use which might, ,time,.have for the
H1vontions.· Whether the defendant can. bi.wfully-obtain,th.:rig'bit other roads, iaiunimportant. ' Theplaintiffaupposed it and _ conferred the privilege of' rising his inventions on streh The statement in the bill, that the are l1sea."uuderchar" isalsounini" tered privileges aequired sincethe date-of the Porlant. It does follow that the use has .been extended or increased,by reasonoof such subsequently-acquired privileges. The plea, is sustained.
(Di8trict'Oourt, E. D. Penn8ylvania. 'June 22, 18B1.)
1. OF Foulib Sl1STAIN ALLEGATION OF RESPONDENT THAT BREACH WAS CAUS1WBY: LrBELX,ANT'S FAILURE TO PERFORM IVERBAL AGREElIlENT :MAQIIl A'r :THE _TIME OF THE , CHARTER, ANI;> NOT INCONSISTENT THEREWITH. . ,,
" . ' . '). ! ·
Libel against a Tug for Breach of Coiltract :,', Libellant, by a written agreement, chartered ;the tug for. use in certain dredging:operations at the price of, He that the tug failed- to perform the-woxk. Respondents averred that, bya verbal agreement made at time as. the written charter, libellant agreed to furnish, the .and pay the current expenses of the tug in part p.8lyment of the $500 per month; and that he failed to do this, whereby: tlie trig unable to: perform the work.· Various question of"law;affeotingthe Validity of the'lienclaimed by libellant,were raised upon the argument. Theodore M. Etling and Henry Ro Edm;un.d6; forJibellant. , Henry Flanders, for respondent., - , " , " 'BUTLER, D. J'.Accepting the libellant's view,: of theseveralunpor. taut questions oHaw discussed, .he is 'still not.entmed to reeove:t;.I find the facts.tobe,snbstantially, as stated liy 7the respondent., The verbal agreement respecting supplies, and the. time, 'and manner of paying for the vessel's \services, .itdblly prov:ed by the· master and, pRot,-is prineipally admitted,eon· er0ss-exaniinationj by the libel],ant, and is not:iiuQonaistent,with the The, agreement is; fllr:thrInore, reasonable. and" tperefora, Plobaible: It Itvoid sthe ..()r the.. to the danger of 'li'ens 'arid" attacllIneiits: ,. rhai 'it' I-Complied . with is proved by the same witnesses,-the master and pilot,-who
by Frank P. Prichard, Esq., of the Philadelphia bar.