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"First. That on the tenth day of December, 1877, the contract (Exhibit A) attached to the complaint in this action was entered into between said plaintiff and the defendant through and by the then acting street commissioner of said city. Second. That said plaintiff performed the work in said contract provided for, and completed the same on or about the July, 1878. Third. That said work and improvement was accepted by the proper authorities after its completion, and on or about the day of July, 1878. Fourth. That the defendant paid to plaintiff on account of said contract, in warrants on its treasurer drawn in his favor, and which were duly paid, the following amounts: At the respective dates of February 25, 1878, $300; April 1, 1878, $400; August 12, 1878, $813.05,-making the aggregate payments to him previously of $1,513.05. Fifth. That between the sixth day of July, 1878, and the sixth day of August, 1878, divers claims and statements were presented to the city clerk, and filed with the mayor and common council of said city, by laborers, subcontractors, and material-men, who had performed labor and provided materials for said plaintiff in the performance of said contract, and which were used therein, and which said claims were each indorsed and signed by said plaintiff, and by writing indorsed on the same, admitted by him to be correct, and which said claims amounted in the aggregate to $1,423.75, and which were duly paid by defendant. Sixth. That between the twenty-eighth day of June, 1878, and the seventh day of August, 1878, divers other claims and statements were presented by divers other persons who claimed to have performed labor and furnished materials used in the performance of said contract, and were filed with the said inayor and common council and city clerk, and which claims and statements amounted in the aggregate to the sum of $736.20; that all of said last-named claims were disputed by said plaintiff, and that said disputes yet remain unsettled, and are yet pending between said claimants and said plaintiff, and an action is now pending to determine the same. As a conclusion of law from the foregoing facts, the court finds that the defendant is entitled to judgment against the plaintiff for the costs in its behalf expended, and it is so ordered."

We do not think that the conclusion of law drawn by the court from the facts found is correct. The contract price for the work was $3,400. The defendant paid the plaintiff in person $1,513.05, and paid his creditors, who had done work and furnished materials for the improvement of the streets, $1,423.75. If the defendant is allowed credit for both of these sums there will still remain a balance to the credit of plaintiff of more than $400, for which he was certainly entitled to judgment.

But we are of the opinion that defendant was not entitled to a credit for the sum of $1,423.75, paid plaintiff's employes, unless he consented. The contract was to pay the plaintiff in a certain manner, and the contract was not performed by the payment of the money to plaintiff's employes without his consent. There was nothing in the law as it existed when the contract was made authorizing such payment, and the fact that by a subsequent act of the legislature such a law was passed did not affect the plaintiff's right. The legislature could not by an act passed after this contract was made change its terms, or authorize a performance different from that prescribed in the contract. Goodale v. Fennell, 27 Ohio St. 426.

It is a well-settled principle of law that one person cannot, without authority, pay the debt of another and charge the amount so paid

against the party for whose benefit the payment was made; and we see nothing in the facts of this case which take it out of the general rule. If it should appear on another trial of this case that the payments to other persons than the plaintiff were made with the consent or approval of the plaintiff, they should be allowed; but we cannot see how the claims in dispute between the parties can be allowed against the plaintiff's demand.

Judgment and order reversed and cause remanded.

We concur: MYRICK, J.; Ross, J.; McKINSTRY, J.; MCKEE, J.; THORNTON, J.

(68 Cal. 80)


Filed November 25, 1885.

1. ATTORNEY AT LAW-ACTION BY, ON ASSIGNED CLAIM-CRIMINAL INTENT. In an action by an attorney on an assigned claim, the court will not presume from the fact that he is an attorney and has brought the suit, in the absence of any pleading or evidence on the subject, that he took the assignment with the criminal intent specified in section 161 of the California Penal Code. 2. APPEAL-VERDICT-CONFLICTING EVIDENCE.

The verdict will not be disturbed when there is a substantial conflict in the evidence on which it is founded.

In bank. Appeal from superior court, city and county of San Francisco.

Wilson & Wilson, for appellant.

L. E. Bulkeley, for respondent.

MYRICK, J. The plaintiff sued as assignee of one Quimbie to recover the amount of an alleged deposit made by Quimbie with defendant.

1. A point made by appellant (defendant) is, the plaintiff, being an attorney, cannot maintain this action, the assignment to him being void, because of section 161, Penal Code, viz.: "Every attorney who, either directly or indirectly, buys, or is interested in buying, any evidence of debt or thing in action, with intent to bring suit thereon, is guilty of a misdemeanor." In the absence of any pleading on the subject, and of evidence showing that the assignment was taken with the intent to bring suit, we will not presume, from the fact that he is an attorney and has brought the suit, that he took the assignment with the criminal intent specified in the section above quoted.

2. Upon the questions whether the defendant received the money as a banker, deposited on account of plaintiff's assignor, whether it was to go on the payment of the debts of the Carson Mill Company to defendant, and the other questions involved, the testimony was conflicting, and the verdict of the jury is decisive.

We see no error in the record. The judgment and orders appealed from are affirmed.


(2 Cal. Unrep. 567)


Filed November 25, 1885.


The law purporting to authorize a judge, by order, to permit the judgment creditor to institute and maintain an action against the debtor of the judgment debtor, (viz., Code Civil Proc. Cal. § 720,) is unconstitutional and void, as no notice of such proceeding to the judgment debtor is provided for.

In bank. Appeal from superior court, city and county of San Francisco.

Wilson & Wilson, for appellant.

L. E. Bulkeley, for respondent.

MYRICK, J. The plaintiff herein, Bryant, had judgment against one Quimbie; and such proceedings were had, under sections 714720, Code Civil Proc., that the judge of the court in which the judgment had been rendered signed an order authorizing the plaintiff to institute an action against the defendant herein, as a debtor to Quimbie. That order was not filed by the clerk of the court, nor any entry made. On the trial of this case in the court below, the order, as well as all the proceedings subsequent to the execution, were produced by the attorney for the plaintiff from his own custody. In pursuance of such order, this action was commenced. Inasmuch as no notice to the judgment debtor of the proceeding authorized by section 720 of the Code of Civil Procedure is provided for, we are of opinion that that section, which purports to authorize the judge, by order, to permit the judgment creditor to institute and maintain an action against the alleged debtor of the judgment debtor, is unconstitutional and void. This, not only for the protection of the rights of the judgment debtor, but also for the protection of those of his alleged debtor, who might otherwise be compelled to pay twice

A cogent argument in favor of the correctness of this view is the following, which we present by way of illustration: A case is now in this court on appeal, in which case one Bulkeley, an assignee of Quimbie, sued the Bank of California (the defendant herein) to recover of it a sum of money, a portion of which sum is the identical money in controversy in this action; Bulkeley asserting his right to have judgment for the whole. If Bulkeley be entitled to recover, as assignee of Quimbie, and if the plaintiff here could recover, the result would be the defendant would have to pay the amount of plaintiff's demand twice. Judgment and order reversed and cause remanded. I concur: Ross, J.

MCKEE, J., (concurring.) For the reasons given in my opinion heretofore filed in this case (7 Pac. Rep. 128) I concur in the judgment.

MORRISON, C. J., (concurring.) I concur in the judgment on the ground stated by MCKEE, J.

(68 Cal. 68)

PIERCE v. GUITTARD and others. (No. 8,944.)

Filed November 25, 1885.

TRADE MARK OR NAME-INJUNCTION AGAINST FRAUDULENT IMITATION OF. Where a person having an established business for his goods carries it on under a given name or with a particular mark, it is a fraud on him for other persons to assume the same name or mark, or one similar with only a slight alteration, in such a way as to induce people to deal with him in the belief that they are dealing with a person who has given a good reputation to the name or mark, and equity will in such cases enjoin the use of such mark or name, whether it constitute a trade-mark or not.

In bank. Appeal from superior court, city and county of San Francisco.

Charles P. Eells, for appellant.

Wheaton & Harpham, for respondents.

Ross, J. The complaint alleges that the plaintiff for more than 13 years next preceding the commencement of this action has been, and still is, engaged in the manufacture and sale of a chocolate called and known as "German Sweet Chocolate," "the name of German being that of one Samuel German, who was on and before the nineteenth of June, 1867, employed, and who has ever since been and is now employed, by plaintiff in the manufacture of the said chocolate, and who, on said nineteenth of June, 1867, for a valuable consideration, duly assigned and transferred to the plaintiff the exclusive right to use his, the said German's, name upon the said chocolate so as aforesaid made and manufactured, and upon the labels and cases containing the same, and generally to use the said name of German as a trade-mark therefor;" that the chocolate has long been well and favorably known in the trade and to the public generally by the name of "German Sweet Chocolate," and has been and is now extensively sold under that name, and now is and for a long time has been the source of large profits to the plaintiff; that during the time mentioned it had been and still is put up by the plaintiff in the form of a cake of about five inches in length and two and one-half inches in width, each cake inclosed in a wrapper and label, which has, on a gilt background, a green panel with arabesque border, in the center of which is a white star, surrounded by the words "German Sweet Chocolate;" that the said wrapper and label with the said words and figures thereon were appropriated by plaintiff to his exclusive use as a trade-mark to designate the origin and ownership of said "German Sweet Chocolate," and has been such ever since; that the defendants for more than four years last past have been and still are manufacturing and selling an inferior article of chocolate in the form of a cake similar in shape to the "German Sweet Chocolate" of the plaintiff, put up in wrappers and labels of about the same size and shape as the plaintiff's, and bearing the words "Sweet German Chocolate" in a green panel on a yellow or gilt background, with arabesque pattern; that the wrappers and labels of the defendants are fraudulent imitations of those of the plaintiff, and were and are cal

culated and intended by the defendants, and each of them, to deceive dealers and purchasers, and to mislead them into using their inferior article instead of, and as and for the chocolate manufactured by the plaintiff, and has had and continues to have that effect, to the serious injury of the plaintiff. And the plaintiff prays a decree restraining defendants from making or causing to be made, or in any manner using, wrappers or labels having upon them the words "Sweet German Chocolate," or any words, figures, or designs resembling or imitating the words, figures, and designs used by the plaintiff as his trade-mark, and also for an accounting of profits alleged to have been made by defendants out of the alleged fraudulent sales, and for damages. At the trial plaintiff was nonsuited, and the appeal is from the judgment given against him, as also from an order refusing him a new trial.

The plaintiff, after giving evidence that for many years he has manufactured at Dorchester, Massachusetts, a chocolate under the name of "German Sweet Chocolate," put up in the form and manner stated in the complaint, and sold throughout the country, testified as follows:

"I applied the name of German Sweet Chocolate' to that chocolate at Dorchester in 1866. I applied it because it was a good name, and I wished to place upon the market a new brand of sweet chocolate of improved manufacture. I got the name from Samuel German, and he authorized me to use it. In June, 1866,--about the time I commenced the manufacture,-I obtained it because I wanted to use his name, and I wanted his authority to use it. In the earlier years of the manufacture by me of German Sweet Chocolate,' Samuel German was personally engaged in the manufacture of it, but, owing to his advancing age and infirmities, he has been given lighter work to do since. The German Sweet Chocolate' has been sold and known to the trade under that name, and by the labels I have mentioned, since 1866. At the time I had adopted the name and those labels no other chocolate was sold or known to the trade under similar symbols, or under a name of which the word German' formed a part. I appropriated the name German Sweet Chocolate, made by S. German, Dorchester, Mass.,' to my exclusive use as a trade-mark for that chocolate, with the design, symbol, and device as appear by the labels I have mentioned, and I still claim the same, as I always have, as my trade-mark."

The witness gave further testimony tending to show that he has ever since sold his chocolate extensively throughout the United States, and received pecuniary profits therefrom, and that the chocolate sold by the defendants under the name of "Sweet German Chocolate" is of inferior quality. Other witnesses testified that the chocolate sold by defendants is inferior to that of the plaintiff, and is bought by the jobbers at a less price than plaintiff's chocolate can be bought for, and is retailed by them to the public as and for the "German Sweet Chocolate" of the plaintiff. A witness named Doyle testified on behalf of the plaintiff that he was in the employ of defendants as foreman at the time their label was gotten up, and had formerly been connected with a large house in New York that had the New York

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