This presents the most difficult question in the case. In cases of boundary lines it is often difficult to distinguish when the case is within section 6179, 2 How. Stat., prohibiting a conveyance of real estate by parol, etc., and the case where there has been a settlement of the disputed boundary line, acquiesced in by both parties, and where one party or the other, in consequence thereof, has changed conditions.

The testimony upon this point is as follows: La Prad testified that he lived 11 years at one time upon the Henderson farm, and knew Mr. Campau.

"Mr. Campau told me that he was going to mark the line. I have no learning, so it is quite a job for me to keep dates of all those things. It was before I left the Reeves farm, and I left the Reeves farm in 1873. I had a talk with Mr. Campau at that division line. Mr. Campau told me he wanted me to mark that place, or that line; that they were going to establish and call it a division line between them. So he got me to take a brick, or gave me a brick, and I got a spade, and put it down there, and it is there yet, I suppose. He said they had agreed on that; he and Henderson had agreed that that should be the division line. The fence was there at that time."

Vermette testified, in regard to this fence, as follows:

"I don't remember the time it was built, but I seen a new fence built there, which Mr. Campau- At the west side of the fence, at the corner, which, when I came up there with Mr. McDonnell and Mr. Jim Padley, I told the boys, says I, 'I suppose that is in there to tell us to get out of there.' I said, said I, 'I suppose this is what says, "Don't get in that lot." "Oh, no!' he says, 'I don't have anything to do with that; it is Mr. Henderson.' I think it is Dennis Campau. I have known him for quite a few years back. I was on the Henderson farm. He was right there on the west side. I think it is the Woodbridge farm, adjoining Henderson. That fence was newly built. I don't know how long it was built, but that was a new fence.

"Q. In what year was that?

'A. I think it was in 1867 or 1868. I won't be positive, but I think it was one of them two years that I went

through with the boys hunting. 33 or 34 years ago, I think.

Well, it must be about

"Q. What did Mr. Campau say to you?

"A. Well, he said the agreement; that is, he concluded, him and Henderson, that was his line, and it would be a good thing for to put in a good landmark there,— a stone or a brick. That is all he told me. I didn't ask no questions whether they were going to put it in. It was none of my business, anyhow, to do so. He said he concluded -him and Henderson-that that was the line of their fences between the two, and a stone or a brick would be a good landmark. He said he agreed with Mr. Henderson that was their line, and the fence was on the right line; it was the right line, and this agreement made that the line, and that it was in the right place as he spoke. He said that that was what he and Henderson had agreed upon."

We think the true principle controlling these questions Is stated by Chief Justice CAMPBELL in Smith v. Hamilton, 20 Mich. 438 (4 Am. Rep. 398). The testimony does not show that there had been any dispute, or even a doubt, between Henderson and Campau, as to the true boundary between them. There must be, not only an express agreement, and monuments erected, which have been acquiesced in, but there must have been a doubt or controversy as to the true line; otherwise, the case comes within the prohibition of the statute. So far as appears upon this record, Henderson and Campau may have had no controversy, nor cared sufficiently at the time to have the matter settled. It may have been agreed to solely for temporary purposes, to separate fields or pastures. We do not think defendant showed sufficient to bring the case within the decisions of this court sustaining boundary lines fixed by agreement and acquiescence. Cronin v. Gore, 38 Mich. 384; Manistee Manfg. Co. v. Cogswell, 103 Mich. 605; Pittsburgh, etc., Iron Co. v. Lake Superior Iron Co., 118 Mich. 109.

Other objections are raised to the charge of the court which we do not think it important to mention. We find in them no error. The instructions fairly left the question

to the jury on the two points which were involved in the

case.

Judgment affirmed.

The other Justices concurred.

LAMB KNIT-GOODS CO. v. LAMB GLOVE & MITTEN CO.

1. TRADE-NAMES-RIGHT TO EXCLUSIVE USE.

One Lamb invented a knitting machine, and sold his rights
under his patents to a corporation, which carried on the man-
ufacture at first under the name of the Lamb Knitting-
Machine Company, and later under the name of the Lamb
Manufacturing Company. The Lamb machine was used by
the Lamb Knitting Company, a corporation organized by the
inventor for the manufacture of knitted goods, which cor-
poration sold its property and business to the Lamb Knit-
Goods Company. The last-named corporation employed in
its goods a peculiar stitch, which, however, was in com-
mon use before such corporation adopted it. The words
"Lamb Knit" had come to be generally applied to goods
manufactured on the Lamb machines. Held, that the Lamb
Knit-Goods Company acquired no exclusive right to the use
either of the peculiar stitch, or of the word “Lamb,” in com-
bination with other words, to designate goods of its manu-
facture.

2. SAME SIMILARITY OF CORPORATE NAMES INJUNCTION.
Lamb, an inventor of knitting machines, assisted in organizing
a corporation for the manufacture of knitted goods, princi-
pally gloves and mittens, under the name of the Lamb Knit-
Goods Company. After acting for some years as its superin-
tendent, he left its employ, and organized, in another town,
the Lamb Glove & Mitten Company, and engaged in the man-
ufacture of gloves and mittens on the Lamb machines. The
use of the name was sought to be enjoined under 3 How.
Stat. § 4161a, forbidding a corporation from assuming a name
so similar to that of another corporation as to be liable to
mislead. It was shown that the business of the corporations
was conducted through agents largely, and that the public

120 159 f 120 180

had in numerous instances been deceived. Held, that an injunction should issue.

Appeal from Shiawassee; Smith, J. Submitted February 7, 1899. Decided May 9, 1899.

Bill by the Lamb Knit-Goods Company to restrain the Lamb Glove & Mitten Company and Isaac W. Lamb from using the word "Lamb" in connection with their business in such manner as to mislead complainant's customers. From a decree dismissing the bill, complainant appeals. Reversed.

Fred L. Chappell and H. P. Stewart, for complain

ant.

Cahill & Wood, for defendants.

MONTGOMERY, J. The complainant avers by its bill of complaint that it is a corporation, with its home offices at Colon, Mich.; that, prior to its organization, the defendant Isaac W. Lamb had organized a company at Concord, Mich., known as the "Lamb Knitting Company," and that, at the time of complainant's organization, it acquired all of the property, business, and good will of the Lamb Knitting Company from Isaac W. Lamb, and paid a valuable consideration therefor; that, at the time of the organization of the complainant, Isaac W. Lamb was interested in the organization of the company, and received a large amount of the capital stock; that the complainant assumed the name of the "Lamb Knit-Goods Company" with the knowledge and consent and at the desire of Isaac W. Lamb; that the complainant was organized to conduct a business similar to that which had been previously conducted by the Lamb Knitting Company, which was the manufacture and sale of knitted goods, principally gloves and mittens; that these gloves and mittens have in the main been knitted with a peculiar stitch, and that, from the connection of complainant's name with said

goods, the peculiar stitch has become known as the "Lamb Stitch;" that gloves and mittens may be manufactured by the same machine with a different stitch, which will be equal to the complainant's in durability; that the stitch used by the complainant is for the purpose of distinguishing complainant's goods; that, after the organization of complainant, Isaac W. Lamb was in its employ for a number of years as superintendent, but that he became dissatisfied, and left complainant's employ on the 8th of April, 1892; that thereafter he, with the assistance of others, organized a company known as the "Lamb Glove & Mitten Company," at Perry, Mich., and commenced to manufacture gloves and mittens knitted with the same peculiar stitch as that employed by the complainant; that the name adopted by the defendant company is similar to that adopted by the complainant, and that purchasers and dealers are deceived thereby, and buy the goods of the defendant believing them to be the goods of the complainant; that the business of the complainant has been damaged thereby, Complainant avers that it is entitled to the exclusive use of the word "Lamb". in connection with knit goods of any description, and to the word "Lamb" in its corporate name; that it has the exclusive right to use the peculiar stitch; and that for this reason the words "Lamb Knit" have become and are a valid trade-mark at common law. The bill prays an accounting and an injunction.

The answer admits that the complainant assumed the name of the "Lamb Knit-Goods Company" with the knowledge and consent of Isaac W. Lamb, but denies that the complainant is entitled to the exclusive use of the words "Lamb Knit," or the use of the word "Lamb" in connection with other words indicating knitted goods. The answer also admits that the complainant acquired all the property, business, and good will of the Lamb Knitting Company, but avers that Lamb acted in the transaction, not for himself, but as agent for the Lamb Knitting Com

120 MICH.-11.